2006 BCSC 900 Fahlman v. Community Living B.C. & Others

Before: The Honourable Mr. Justice Chamberlist

Reasons for Judgment

Counsel for the petitioner:	F. Kelly
Counsel for the respondents:	M. McNeil
Date and Place of Trial/Hearing:	March 22, 2006
	Victoria, B.C.

INTRODUCTION

[1] In these proceedings the petitioner seeks relief pursuant to ss. 1, 2, 3, 8 and 10 of the Judicial Review Procedure Act, R.S.B.C. 1979, c. 209; Rules 1, 10, 44 of the Supreme Court Rules; the Community Living Authority Act and Regulations; and ss. 7, 15(1) and 1 of the Canadian Charter of Rights and Freedoms; and the inherent jurisdiction of the Supreme Court of British Columbia.

[2] For the purpose of this decision I have determined that it is not necessary to deal with any assertion under the Canadian Charter of Rights and Freedoms and I will not be doing so.

[3] Pursuant to the petition, the petitioner has applied for the following orders:

1. An order in the nature of certiorari quashing the October 24, 2005 decision of the Community Living British Columbia ("CLBC") to deny Neil Fahlman adult services when he turns 19;

2. A declaration that the CLBC's decision to deny the petitioner benefits on the basis of the IQ criterion employed by it is ultra vires its statutory authority;

3. An order quashing the reconsideration of Dale Chandler (hereafter "the Reconsideration") dated February 3, 2006, confirming that Mr. Fahlman is ineligible for benefits;

4. An order remitting the complaint back to CLBC to reconsider the petitioner's eligibility for benefits after aged 19 according to proper and constitutional criteria; and

5. Costs.

[4] Interim orders were also sought in the petition, however, I am advised that pending the outcome of this petition benefits are being paid to the petitioner, Neil Fahlman, and need not therefore be dealt with.

[5] The defendant has also conceded that if it is successful in defending the petition the defendant does not seek any costs.

BACKGROUND

[6] The petitioner, Neil Fahlman (hereafter also referred to as "Neil"), presently age 19 years, has multiple developmental and intellectual disabilities. The petitioner Fiona Gow is the adoptive mother of Neil Fahlman.

[7] The respondent CLBC is a Crown corporation established pursuant to the provisions of the Community Living Authority Act, S.B.C. 2004, c. 60, and as of July 1, 2005 delivers services and support to adults with developmental disabilities who are living in the community.

[8] Neil was adopted by the petitioner Fiona Gow at the age of 5 weeks. Neil has been diagnosed with fetal alcohol syndrome, attention deficit disorder and pervasive developmental disorder, being a type of autism. These disabilities result in serious behaviour issues unless Neil has adequate support. At the age of 12 years, Neil qualified to receive services from the Ministry of Children and Family Development ("MCFD"). At age 14 he began to receive services from Community Living Services. On July 1, 2005, pursuant to the provisions of the Community Living Authority Act, responsibility for the delivery of services and support previously delivered by the MCFD and Community Living Services was transferred to CLBC. There was no disruption in the support Neil Fahlman was receiving.

[9] By the time that Neil was 15 years of age Ms. Gow and her husband were no longer able to care for him at home. This was due to his emotional volatility and impulsiveness coupled with his size, strength and weight. He presently weighs over 300 pounds. Neil is presently unemployed and receives disability benefits from the Provincial Government. Although Neil does not reside with Ms. Gow and her husband she has been active in attempts to stabilize his situation. Over the past several years a number of foster home placements have not worked out because of the same challenges he presented to Ms. Gow and her husband. As of the date of the hearing of this petition Neil was in a stable situation, living in a small cabin in Shawnigan Lake. He was receiving funding for 7 hours of one-on-one assistance every day and although he is incapable of gainful employment the one-on-one assistance allows Neil to maintain a threshold of independence and stability.

[10] In June 2005 CLBC commissioned a psychological report to determine Neil's eligibility for adult services once he turned 19 years of age. That psychological report was prepared by Dr. Barbara J. Burnside on June 15, 2005. The referral question referred to in her report states:

Neil was referred for assistance of his cognitive abilities in order to decide upon his eligibility for services from the adult team of the Ministry of Children and Family Development, Community Living Services. At the time of this assessment Neil was a client of the children's team, but his case was reviewed as he approached age 19. . . . To determine eligibility for services from the adult team, Neil's IQ had to be determined.

[11] At p. 3 of her report, under the heading Summary and Conclusions, Dr. Burnside stated:

Although Neil's IQ scores were not in the range that defines eligibility for services from Community Living Services, his adaptive behaviour was markedly challenged. His scores on the Vineland Adaptive Behavior Scales were in the range of moderate deficit, and included a high level of maladaptive Behavior as well. The Vineland scores justify presenting his case to the Eligibility Screening Committee, regardless of his cognitive scores.

RECOMMENDATIONS

1. Present Neil's case to the Eligibility Screening Committee.

2. Health and safety issues are relevant here. Without the supports now in place Neil would be extremely vulnerable to his own aggressiveness and impulsivity. He could do significant harm to himself and the community without support. . . .

[12] While not expressly set out in the report I accept counsel's representation that Dr. Burnside concluded that Neil exceeded the IQ criteria set by CLBC as she measured his IQ at 79.

[13] It is important that, notwithstanding that finding, she made the recommendation that he be seen by the Eligibility Screening Committee notwithstanding this cognitive scoring.

[14] In spite of the recommendation by Dr. Burnside the CLBC advised Ms. Gow, after receipt of the report, that it would not continue to provide services to Neil after his 19^th birthday, which was to occur on January 29, 2006.

[15] Ms. Gow thereafter asked for a review of the decision to deny continuing support to Neil.

[16] By letter dated October 24, 2005 CLBC replied as follows:

. . .

Re: Neil Fahlman

I am writing in response to your request for an Administrative Review of the eligibility of Neil Fahlman for services through Community Living British Columbia. In reviewing the situation I have gone through the Psychological Assessment completed by Barbara Burnside as well as the information provided through the Island Mental Health Support Team.

Eligibility for Community Living Services for adults through CLBC is the same as the criteria that was in place for services through the Ministry of Children and Family Development. The eligibility criteria are:

·           Onset before age 18
·           Measured significant limitations in two or more adaptive skill areas
·           Measured intellectual functioning of approximately 70 or below

All of the above criteria must be present for an individual to be eligible for Adult Community Living Services.

In Neil's situation all the criteria are not present. The report states that his "full Scale IQ score was in the borderline range, better than 8 percent of his age mates." His Full Scale IQ is listed as 79. We do have some discretion as the intellectual functioning of approximately 70 or below does allow for some variation. In Neil's case however the variation is so great that an exception is not possible.

I have determined that Neil is not eligible for supports through the Adult Community Living Services of Community Living British Columbia.

I do understand that Neil has presented significant challenges and that your family has worked hard to get support services in place for him. I hope that you are able to identify other sources of support; unfortunately we are only able to offer services to those who meet our eligibility criteria.

Sincerely

"Dale Chandler"
Dale Chandler
Manager CLBC
Victoria
. . .

[17] Thereafter Ms. Gow made inquiries into alternative support for Neil in the event that he was cut off from services upon attaining 19 years of age. She was unable to locate any services for him.

[18] A further review of the decision of CLBC to discontinue services was sought. That review was conducted by Carol Goozh, Vice President of Quality Services, Community Living British Columbia. In her letter of December 16, 2005 she stated:

Further to our telephone conversations last week, this is to advise that I have completed my review of your complaint that your son Neil Fahlman has been denied adult CLBC services.

As outlined in the Community Living Authority Act, CLBC provides support and services to adults with developmental disabilities. The definition of a developmental disability corresponds with the definition in the DSM 4 where "significantly impaired intellectual functioning" means an- IQ of 70 or below, with a small margin for error, and "exists concurrently with impaired adaptive functioning." CLBC policy also specifies that the eligibility criteria for adult service is onset before age 18, measured significant limitations in two or more adaptive skill areas, and measured intellectual functioning of approximately 70 or below.

As Neil has been assessed being in the borderline range of intelligence, with a full scale of IQ of 79, he unfortunately does not meet the eligibility criteria for adult CLBC services. As he will continue to receive children's services until late January 2006, I advise you to continue to work with your social worker to explore other community supports that might be available.

. . .

[Emphasis added]

[19] Thereafter, on January 9, 2006, the petition in these proceedings was filed, and was subsequently amended pursuant to R. 24(1)(a) with the amended petition being filed February 23, 2006.

[20] It is important at this time to set out the statutory scheme and the relevant sections of the Community Living Authority Act.

Section 1 – Definitions

"adult" means a person 19 years of age or over;

"authority" means Community Living British Columbia, established under section 2(1);

"community living support" means any of the following:

(a) support and services to children and adults with developmental disabilities;

(b) support and services to families to assist them in caring for a child or an adult with a developmental disability;

(c) support and services to adults, other than those described in paragraph (a) or (b), who on the date that this Act comes into force, are receiving community living services under vote 16 in the estimates of revenue and expenditure approved for the Ministry of Children and Family Development in the Supply Act, 2004-2005;

(d) support and services to other prescribed persons;

"developmental disability" means significantly impaired intellectual functioning that

(a) manifests before the age of 18 years,

(b) exists concurrently with impaired adaptive functioning, and

Section 2 – Authority established

2(1) There is established an authority to be known as Community Living British Columbia to exercise the powers and perform the functions and duties given to it under this Act.

(2) The authority is a corporation consisting of the board.

Section 5 – Composition of board

5(1) The board consists of up to 11 directors appointed by the minister.

(2) All directors, other than a director referred to in subsection (4), must have the necessary skills, qualifications and experience to direct the authority.

(3) Subject to subsection (2) and section 6(2)(c), a majority of directors must be

(a) individuals referred to in the definition of "community living support", or

(b) individuals who have a significant connection to the individuals referred to in paragraph (a), including family members.

(4) Subject to section 6(2)(c), 2 of the directors must be individuals with a developmental disability.

(5) The chair of the board is a director who

(a) is designated as chair by the minister, or

(b) is appointed by the board under the bylaws of the authority if a chair is not designated under paragraph (a).

(6) The board must establish an advisory committee to the board composed of individuals referred to in the definition of "community living support".

Section 11 – Duties of authority

11 The authority must do all the following:

(a) provide for the delivery in British Columbia of community living support identified by the minister and of administrative services

(i) using available resources through its own employees, or

(ii) by entering into agreements with the government or other persons to deliver or provide for the delivery of that support;

(b) comply with Provincial standards prescribed by the minister under section 18(1)(a);

(c) manage the delivery of community living support and administrative services, including, without limitation, developing policies, setting priorities and allocating resources, in accordance with its service plan, budget plan, budget plan and capital plan;

(d) comply with the minister's directions in carrying out his or her power under section 18(1)(b) to monitor and assess the authority, and comply with processes to assess performance, set by the minister under section 18(1)(c);

(e) prepare, and submit to the minister after the end of its fiscal year, an annual report in accordance with the regulations;

(f) perform other prescribed functions and duties.

Section 12 – Service plan and other plans

12(1) The authority must submit to the minister for approval, by a date specified by the minister,

(a) a proposed service plan respecting the provision of community living support and administrative services for the period specified by the minister, and

(b) a proposed budget plan and capital plan related to the provision of community living support and administrative services by the authority under the service plan referred to in paragraph (a).

(2) In developing a proposed plan referred to in subsection (1) in relation to the provision of community living support, the authority must endeavour to

(a) offer a range of funding and planning options that promote choice, flexibility and self determination, for example, individualized funding, independent planning support and the involvement of community resources,

(b) promote choice and innovation in the manner in which services are delivered,

(d) utilize and further develop the capacity of individuals, families and community resources,

(e) assist adults with developmental disabilities to achieve maximum independence and live full lives in their communities,

(f) promote equitable access to community living support, and

(g) coordinate the provision of community living support with services provided by the government and community resources.

(3) The minister may require that the authority modify a proposed plan referred to in subsection (1) in order to obtain the minister's approval under that subsection.

Section 29 Power to make regulations

29(1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) prescribing additional persons for the purposes of paragraph (d) of the definition of "community living support" in section 1;

(b) prescribing additional criteria for the purpose of paragraph (c) of the definition of "developmental disability" in section 1;

(d) respecting a policy under section 8(3) or any matter relating to conflicts of interest, whether actual or potential, by a director, the chief executive officer, or another officer or employee;

(e) establishing the authority for, or requirements or standards relating to the collection, use, disclosure, custody, control or ownership of, or access to, information by the minister, the authority, service providers or persons who are in receipt of funding under this Act;

(f) respecting a common client information system among the minister, the authority and service providers, or any of them;

(g) defining, for the purposes of this Act and the regulations, words or expressions used but not defined in this Act.

(3) The minister may make regulations as follows:

(a) prescribing the form and content of and process for an annual report under section 11(e) or a proposed plan under section 12(1);

(b) for the purposes of section 13, respecting consultation and collaboration and the making of agreements;

(c) establishing a process to determine whether the authority is meeting and continues to meet the Provincial standards set by the minister under section 18(1)(a);

(d) respecting the transfer of records to or from the authority under section 23.

(4) A regulation made by the Lieutenant Governor in Council or the minister under this Act may provide differently for

(a) different persons or classes of persons, and

(b) different regions of British Columbia.

[21] As submitted by the petitioner and conceded to by the respondents, the IQ criteria relied upon by CLBC is not in the statute. Under s. 11 of the Act CLBC must provide community living support as quoted above. Under s. 1, community living support is defined to mean any of the following:

(a) support and services to children and adults with developmental disabilities;

(b) support and services to families to assist them in caring for a child or an adult with a developmental disability; . . .

[22] Section 1 also sets out a definition of developmentally disabled. That section sets out two criteria and indicates that additional criteria can be prescribed by regulation:

"developmental disability" means significantly impaired intellectual functioning that

(a) manifests before the age of 18 years,

(b) exists concurrently with impaired adaptive functioning, and

[23] By virtue of s. 29 of the Act only the Lieutenant Governor in Council can pass regulations prescribing criteria for developmental disability. Section 29(2)(a), (b), (c) and (g) are set out at page 10 of these reasons. It is common ground that the Community Living Authority Regulations, B.C. Reg. 231/2005 (deposited June 29, 2005, Order in Council 469/2005 effective July 1, 2005) is silent on the IQ criteria and no regulation has been promulgated by the Lieutenant Governor in Council. Thus the determination of the CLBC, although meeting the first two statutory criteria, has been denied benefits on the basis of a third criteria of its own making. This conclusion is very clear from the letter of Carol Goozh of December 16, 2006, where I find Ms. Goozh has treated, as law, a clinical definition from a well known diagnostic manual.

ANALYSIS

[24] It has often been stated that where legislation authorizes a delegate to make regulations then the delegate must make them and any delegation of that statutory authority will be ultra vires. In other words, the delegate cannot sub-delegate the law making power without statutory authority to do so. In the case at bar, the Lieutenant Governor has chosen not to promulgate a regulation to create the IQ criterion as a statutory consideration to be applied by the CLBC. Nevertheless, the CLBC appears to have adopted policy which amounts to binding regulation which appears to state that only individuals with an IQ below 70 to 75 will be eligible for the services it provides in accordance with the statutory scheme. That was made clear in the first letter denying benefits to Neil on October 24, 2005, where Dale Chandler, Manager of CLBC, stated:

Eligibility for community living services for adults through CLBC is the same as the criteria that was in place for services through the Ministry of Children and Family Development. The eligibility criteria are:

Onset before age 18

Measured significant limitations in two or more adaptive skill areas

Measured intellectual functioning of approximately 70 or below

All of the above criteria must be present for an individual to be eligible for adult community living services.

[25] A similar issue was considered by the Supreme Court of Canada in Canada (Attorney General) v. Brent, [1956] S.C.R. 318. In that case the Governor in Council had the statutory power to make regulations and to make decisions on deportation. The Governor in Council delegated these powers to an immigration office through enacting regulation 20(4), which gave to immigration officers the authority to deport individuals, a power residing with the Governor in Council under the statute. The Supreme Court of Canada held that this was an unlawful delegation of statutory power and quashed the regulation as an unlawful delegation. At p. 321 of the decision, Chief Justice Kerwin stated:

I agree with Mr. Justice Aylesworth, speaking on behalf of the Court of Appeal, that Parliament had in contemplation the enactment of such regulations relevant to the named subject matters, or some of them, as in His Excellency-in-Council's own opinion were advisable and not a wide divergence of rules and opinions, everchanging according to the individual notions of Immigration Officers and Special Inquiry Officers. There is no power in the Governor General-in-Council to delegate his authority to such officers.

[26] A similar issue arose in Brant Dairy Co. v. Ontario (Milk Commission), [1973] S.C.R. 131, where the Supreme Court of Canada held the a regulation created by the Ontario Milk Marketing Board was ultra vires on the basis that the commission had invalidly sub-delegated its statutory regulation making power to the board. At p. 146 of that decision, Laskin J. (as he then was) stated:

Section 4 of O. Reg. 52/68 is of another order. It purports to carry out what is delegated to it under subss. (i), (iii) and (iv) of s. 6(i) of the Commission's Regulation 294/65. These provisions of the Commission's regulation merely repeat the statutory terms of para. 11 of s. 8(1) with the substitution of the words "marketing board" for the word "Commission" in the statute. Paragraph 11 of s. 8(1) is a "providing" clause; the Commission and, by delegation, the Board are authorized to provide by regulation for a quota system and for quotas. What the Board has done has been to exercise the power in the very terms in which it was given. It has not established a quota system and allotted quotas, but has simply repeated the formula of the statute, specifying no standards and leaving everything in its discretion.

I am of the opinion that s. 4 of O. Reg. 52/68 is ultra vires. The fact that the powers conferred are to be carried out on a basis that the Board deems proper does not entitle it to keep its standards out of the regulation. The "deem proper" clause of the empowering statute gives the Board (as subdelegate) a wide scope in setting up a quota system and in fixing quotas but it does not allow the Board to escape its obligation, as I read the statute, to embody its policies in a regulation.

A statutory body which is empowered to do something by regulation does not act within its authority by simply repeating the power in a regulation in the words in which it was conferred. That evades exercise of the power and, indeed, turns a legislative power into an administrative one. It amounts to a redelegation by the Board to itself in a form different from that originally authorized; and that this is illegal is evident from the judgment of this Court in Attorney General of Canada v. Brent.

In the Brent case, what was in issue was the exercise of power delegated to the Governor in Council by the Immigration Act to make regulations respecting enumerated matters. What the Governor in Council did was to embody the very powers in a regulation which confided their application to a special inquiry officer. This was held to be an invalid subdelegation it converted the required reflection in a regulation of the opinion of the Governor in Council into an unregulated exercise from time to time of the opinion of a special inquiry officer.

The principle is the same here. The Board was required to legislate by regulation. Instead, it has purported to give itself random power to administer as it sees fit without any reference point in standards fixed by regulation.

[Footnotes omitted]

[27] I have concluded therefore that the CLBC's action following these two lines of authorities, was ultra vires on the basis that it was an unlawful delegation of the power to make regulations, which under s. 29 of the statute resides with the Cabinet. In accordance with the statutory enactment, the Lieutenant Governor in Council alone has the ability to promulgate criteria to determine who meets the criteria for "developmental disability" as set out in s. 1 of the Act.

[28] It is clear that the legislative intent was to expressly leave the important determination of criterion to the cabinet. In this case the CLBC has denied on the basis of an unlegislated criterion. Further, I am of the view that in doing so, the CLBC has fettered its own discretion by adopting the IQ policy and then refusing to consider other factors that are relevant. Dr. Burnside made her recommendations in this case knowing full well that the IQ criterion established by the CLBC was not met but considered the seriousness of Neil's condition to be appropriate for continued assistance notwithstanding non-conformance with the IQ criteria which I have found to be wrongfully established by the CLBC. Therefore, in this case I find that the CLBC has impermissibly structured its discretion using its own rigid criteria of IQ below the 70 to 75 range in a manner which precluded it from considering the merits of Neil's case.

[29] On a collateral matter, it is necessary to also rule on the admissibility of affidavit #1 of Dale Chandler which was sworn the 3^rd day of February 2006, and particularly paras. 18 to 21, found at p. 5 of that affidavit. Paragraphs 18 to 21 are as follows:

18. Although the additional information listed below was not considered by me in reviewing Mr. Fahlman's eligibility for services, I have since had an opportunity to review Mr. Fahlman's complete file with the Ministry, and have noted that he has had intellectual functioning tests conducted on several occasions while receiving services from the Ministry. Specifically, in October 2001, Mr. Fahlman was assessed by Marilyn Allison, a registered Psychologist. Her report indicates that Mr. Fahlman's full scale IQ was 89, which was found to be in the low average range.

19 Further, an assessment conducted by the Greater Victoria School District in August of 1999 found that Mr. Fahlman's cognitive ability was in the average range and noted to be at the 37^th percentile for his age peers.

20. A further Neuropsychological Educational Assessment Report was prepared on September 12, 1996 by Nancy Harrison, which determined that Mr. Fahlman's full score on intellectual testing was in the average range and again found to be at the 37^th percentile for his age.

21. In December 2004, an assessment was made of the financial requirements to provide the services to Mr. Fahlman that he currently enjoys. This consists of seven hours per day of service 365 days per year, provided by an agency contracted to the Authority. Additional expenses included transportation, recreation and meals, and administration. The monthly contract amount in December 2004 was found to be $6,455.25 reflecting an annual cost of $77,462.40.

[Exhibit notations omitted]

[30] These paragraphs refer to information that was not before the CLBC when it made its decision to deny benefits, or the reconsiderations that took place prior to the issuance of the petition herein. It is after the fact information the respondent tenders to bolster its position. The evidence contained in those paragraphs and the various Exhibits filed pursuant thereto were not before the CLBC when it made its determination. As such, these paragraphs are inadmissible on judicial review.

[31] The general rule on judicial review is that the court cannot consider evidence that was not before administrative tribunal. Authority for this proposition is found in the decision of Laprise v. British Columbia (Human Rights Commission), [1999] B.C.J. No. 1808, Vancouver Registry No. A91941. Madam Justice Sinclair Prowse said, at paras. 7 and 8:

7. In the course of this hearing, there was a question raised as to whether this court could hear further evidence or whether the jurisdiction of this court was limited to a consideration of the record. After considering the submissions of counsel and the authorities presented, I have concluded that this court is limited to a consideration of the record and that further evidence is not admissible Vanton v. British Columbia (Council of Human Rights), [1994] B.C.J. No. 497 (Q.L.)(S.C.); Poirier v. British Columbia (Council of Human Rights), [ 1996] B.C.J. No. 1795 (Q.L.) (S.C.); Mackenzie v. Howe Sound School District No. 48 (supra); and Sarder v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1230 (Q.L.) (T.D.). This conclusion is in keeping with the nature of the proceeding. That is, an application under the Judicial Review Procedure Act is not analogous to an appeal but rather is a determination as to whether the impugned tribunal has acted within its jurisdiction Tse v. British Columbia Council of Human Rights and Quilchena Golf and Country Club (supra) and Mackenzie v. Howe Sound School District No. 48 (supra).

8. Having reached this conclusion, I did not consider any evidence or any submissions pertaining to any evidence that was not part of the record before the Human Rights Commission.

[32] The only exception to this rule arises in cases where the party wishing to add to the record alleges jurisdictional error or a violation of natural justice. Neither of these exceptions arises in the respondents' submissions. See Evans Forest Products Ltd. v. British Columbia (Chief Forester), [1995] B.C.J. No. 729.

[33] As a result, I have concluded that paras. 18 to 21 inclusive of the Chandler affidavit #1 of February 3, 2006, should be expunged and in the result I have not considered that material in my decision.

[34] Thus, in the case at bar, the issues that arise are pure issues of jurisdiction in relation to CLBC's application of the eligibility criteria. In applying the law set out recently by the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] S.C.C. 19, the decision of the Board attracts a correctness standard of review where very little deference will be observed.

[35] In the case at bar there is no privative clause or a statutory right of appeal; rather the decision of CLBC under review arises out of an internal appeal set by policy and there is no legislative appeal process governing the eligibility.

[36] In conclusion I am satisfied that utilizing its own determination of appropriate IQ cut-off criteria the Board has denied Neil important benefits in the absence of any legislative authority and also without considering the merits of Neil's case, which included the recommendation of its own expert, being Dr. Burnside, that he receive continued benefits. Thus, the decision of the Board that all criteria must be met is at odds with the legislative intention expressed in the statute in that the requirement for all three criteria to be met amounts to an impermissible definition of "disability benefits" on the basis of additional criteria not permitted by statute.

[37] In coming to this conclusion I have considered the respondents' able submission that the decision of CLBC pertains to an issue of fact and one from which the court should show considerable deference. The respondents submit that the issue considered by CLBC was whether Neil Fahlman was developmentally disabled within the meaning of the Act and that this being a question of fact within the expertise of the authority considerable deference should be shown. In support of that submission the respondents submit that the duties of the authority set out in s. 11 include the duty to "manage the delivery of community living support and administrative services, including, without limitation, developing policies, setting priorities and allocating resources in accordance with its service plans, budget plan and capital plan". On that basis the respondents submit that s. 11 demonstrates that the authority was given wide ranging discretion with respect to the provision of the benefits it is authorized to administer.

[38] The respondents submit that the Board was correct in interpreting and applying the definition of "developmental disability" set out in the Act, namely:

developmental disability" means significantly impaired intellectual functioning that

(a) manifests before the age of 18 years,

(b) exists concurrently with impaired adaptive functioning, and

[39] The respondents say that in order to meet the test of having a developmental disability, again, the same three factors must be present as set out in s. 1.

[40] While the respondents admit that there are no other prescribed criteria which are relevant to the inquiry, while admitting that Neil has an impaired adaptive functioning. The respondents also admit that if Neil had a "significantly impaired intellectual functioning" within the meaning of the Act, that such impaired intellectual functioning manifest before he was age 18. Accordingly, it is the position of the respondents that Neil's eligibility for services from the authority hinges entirely on the issue of whether he has a significantly impaired intellectual functioning.

[41] The respondents also submit that the substance of the petitioner's argument rests on the fact that Neil has impaired adaptive functioning but this alone, says the respondent, does not support a claim for eligibility for benefits. They further submit that the material relied upon by the authority in determining that Neil did not qualify for benefits amply demonstrates that Neil did not have a significantly impaired intellectual functioning. In particular, the respondents submit that most of Neil's functioning as reported by Nathan E. Ory, Registered Psychologist, on May 12, 2001 (Exhibit "C" to affidavit #1 of Fiona Gow) where he found that Neil's wide range of intellectual abilities fall within the "normal" range of ability.

[42] Similarly, the respondents submit that Dr. Burnside's report concluded that Neil's IQ scores were not in the range that defines eligibility for services from CLBC.

[43] As a result, the respondents take issue with the position of the petitioner and says that the Board acted within the powers given to it by the Act and the definition of developmental disability found in the Act. More succinctly, the respondents submit that the Act provides two criteria which must be applied to determine whether an applicant who benefits has the developmental disability and that it is only additional criteria which must be established by regulation. The Board submits that it is the first criteria that that of a significantly impaired intellectual functioning that Neil Fahlman has been unable to meet, and accordingly, the issue before the court on this petition for judicial review is whether the authority's interpretation application of that specific criteria exceeded its jurisdiction. While admitting that the legislature did not provide the authority with a definition of "significantly impaired intellectual functioning" the Board created the policy manual to assist the authority in interpreting its empowering legislation in accordance with its authority under s. 11(c) of the Act.

[44] It will be recalled that s. 11(c) of the statute reads as follows:

11. The authority must do all of the following:

. . .

[45] With the greatest of respect to the Board, I simply cannot accept that the power to manage and develop policy can be interpreted in this way. This section must be read subject to the definition section of developmental disability found in s. 1 and which is specifically referred to in s. 29.

[46] In my view, the Board cannot rely on a general provision such as found in s. 11 to supplement the objectives of the legislature when it reserved unto the Lieutenant Governor in Council to prescribe any other criteria for the definition of "developmental disability". This court is required to interpret the words of the statute in accordance with the approach set out by Iacobucci J. speaking for the court in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, where at para. 21 he stated:

. . . Elmer Driedger in Construction of Statues (2d. Edition, 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone.

At p. 87 he states:

Today there is only one principle of approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of parliament.

[47] Applying that approach, I am of the opinion that the general purpose of the legislation here is to "promote equitable access to community living support" and to "assist adults with developmental disabilities to achieve maximum independence and live full lives in their communities". Thus, the general purpose of the legislation is to determine eligibility for services for children and adults with developmental disabilities and to provide that service either directly or through contracting with agencies. The eligibility provision is thus concerned with statutory eligibility criteria for determining whether an adult seeking services for developmental disability is entitled to services that are to be provided by CLBC.

[48] While CLBC may have some expertise on factual questions that arise within its jurisdiction, it must still apply the proper legislative criteria. Here, it is abundantly clear that it has applied criteria which it alone has instigated contrary to the provisions of the statute. I simply do not accept that the criteria of an IQ of below 70 to 75 can be utilized by CLBC by reason of its own policies and manual. In my view that argument flies in the face of Canada (Attorney General) v. Brent, supra, and Brant Dairy Co. v. Ontario (Milk Commission), supra.

CONCLUSION

[49] As a result, the decision of the Board, together with the reconsiderations must, of necessity, be quashed. I therefore order that there be a reconsideration of Neil Fahlman's eligibility for benefits and that that consideration only be made on the basis of the criteria mandated by the statute as it presently exists.

[50] Unless the parties otherwise wish to address the issue of costs, the petitioner will have its costs on Scale 3.

“E.G. Chamberlist, J.”
The Honourable Mr. Justice E.G. Chamberlist

Citation:	*Fahlman v. Community Living B.C. & Others,*
	2006 BCSC 900