3.22: Evidence on judicial review
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

AB applied for Judicial Review of a Decision of the Persons with Developmental Disabilities Appeal Panel (“Panel”). The Applicant was an individual eligible to receive certain services provided by the Persons with Developmental Disabilities Program. These services were arranged through a Family Managed Services Agreement (“FMSA”) entered into by her guardian.

The Applicant’s guardian became aware that an individual who was caring for the Applicant and whom the Applicant was living with had had sexual assault charges filed against him in respect of another individual being cared for in the same home. As a result of these charges, the Persons with Developmental Disabilities Central Region (“Region”) informed the guardian that the FMSA would be terminated. The guardian was not told by the Region that she had a right to Appeal the Decision to terminate the FMSA; she learned of the right of Appeal independently, at which point she filed an Appeal of the Decision. The Panel dismissed the Appeal for lack of jurisdiction but did not consider the guardian’s written submissions on the point. The guardian sought Judicial Review alleging a breach of procedural fairness, and argued that the Decision was unreasonable.

Renke J. considered whether an Affidavit provided by the guardian was admissible under Rule 3.22. This Affidavit contained the written submissions on the jurisdictional issue which had not been considered by the Panel. The Court noted that had the submissions been properly received and considered, they would have formed part of the certified record of the Judicial Review proceedings, and would have been admitted under Rule 3.22(a). Further, the Affidavit contained relevant evidence in respect of the Applicant’s arguments regarding a breach of procedural fairness, which Renke J. noted is admissible evidence on Judicial Review. Justice Renke also noted that neither the Region nor the Panel made any objection to the Affidavit. For all of these reasons, the Affidavit was admitted.

Justice Renke held that the Panel’s dismissal of the Appeal was unreasonable and was a breach of procedural fairness. Renke J. directed the Panel to hear the Appeal on the merits.

Renke J. noted that Costs are discretionary, which discretion is guided by Rules 10.29(1), 10.31 and 10.33. The Applicant was presumptively entitled to Costs pursuant to Rules 10.29 and 10.33, but Costs are rarely awarded against a tribunal unless the decision involved not just mere error but misconduct that could be described as flagrant, inexcusable, indefensible or incomprehensible. Justice Renke held that this case did not rise to such an extreme and awarded no Costs against the Panel. However, Justice Renke noted that the Central Region’s conduct in the litigation, in particular a late jurisdictional objection which was later withdrawn, attracted additional Costs due to the delay and expense it caused the Applicant per Rule 10.33(2). The Court increased the amount payable for the Applicant’s written brief by $1,000, and otherwise ordered scheduled Costs on Column 1.

View CanLII Details