Docket: T-1785-13
Citation:
2015 FC 571
Ottawa, Ontario, May 1, 2015
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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DHEERAJ KUMAR
MITAL
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Applicant
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and
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THE MINISTER OF
HEALTH
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
For many years now, Health Canada, through its
First Nations and Inuit Health Branch, has been running the Non-Insured Health
Benefits Program (the Program) which provides eligible First Nations and Inuit
across Canada with a limited range of necessary health related goods and
services that would not be provided through private insurance plans,
provincial/territorial health and social programs or other publicly funded
programs. Dental care is one of those services.
[2]
The dental care component of the Program allows
eligible beneficiaries to receive some dental services free of charge, so long
as the services are performed by dentists enrolled as “dental
providers” under the terms and conditions of the Program. Upon being
enrolled, each dental provider is issued a service provider Identification
Number which enables him or her to bill directly – and receive direct payment
from - the Program for services which meet the Program’s requirements. The
newly enrolled dental provider is also provided with the NIHB Dental
Claims Submission Kit and NHIB Dental Benefits Guide which set out
the terms and conditions of the Program and contains information about the
dental providers’ roles and responsibilities, claims’ submissions and
processing, termination of enrolment, audits and dental policies.
[3]
The billing and payment process is administered
by a private firm on behalf of Health Canada. Up until November 30, 2009,
those duties were performed by the First Canadian Health Management
Corporation. Express Scripts Canada took over theses duties from the First
Canadian Health Management Corporation on December 1, 2009 (the Program Billing
and Payment Processors). In addition to being responsible of processing
billing and payment claims, Express Scripts Canada’s duties also extend to verification,
recovery and administrative audits as well as to the processing of providers’
enrolment applications once they are approved by the appropriate authorities
from Health Canada’s First Nations and Inuit Health Branch.
[4]
The Applicant is a dentist practising in the
vicinity of the city of Winnipeg. Up until December 2008, he was enrolled as a
dental provider. At some point in 2006, Health Canada’s First Nations and
Inuit Health Branch for the Manitoba Region (the FNIH Manitoba Branch) began
suspecting that the Applicant was unnecessarily performing teeth restorations
and was billing the Program for work that had not been performed. Pursuant to
the Program’s terms and conditions, an on-site audit of the Applicant’s Program
claims for the period of November 13, 2004 to November 12, 2006, was performed
by the First Canadian Health Management Corporation. The final audit report,
dated July 30, 2007, identified unsupported claims totalling $30,768.15.
[5]
On March 27, 2008, in the wake of the on-site
audit, the FNIH Manitoba Branch filed a complaint with
the Manitoba Dental Association (MDA), seeking an investigation on the
Applicant’s billing practices.
[6]
On December 2, 2008, the Applicant’s dental
provider status was terminated, effective December 19, 2008, on the basis of
ongoing concerns resulting from an examination of the Applicant’s billing
practices since the on-site audit. The Applicant voiced his concerns regarding
this decision but he did not seek to have it judicially reviewed.
[7]
The termination of his dental provider status
resulted in the Applicant’s name being placed on a “Do
Not Register” list.
[8]
On or about March 12, 2011, the Applicant
pleaded guilty before a three-member Inquiry Panel set up under Manitoba’s Dental Association Act, to two of the three counts he was facing as a
result of the complaint filed with the MDA by the FNIH Manitoba Branch. These
two counts both covered the period of April 1, 2005 to December 31, 2007. The
Inquiry Panel was satisfied that the Applicant’s professional misconduct “was serious and represented a significant departure from the
standard of practice of the profession, both with respect to billing practices
relating to surface restorations, and with respect to creating and maintaining
appropriate and detailed records in patient charts to properly support billings
to the FNIHB for dental services provided to a particular patient population”.
[9]
As a result, the Inquiry Panel ordered that the
Applicant:
- Be suspended
from practising dentistry for a period of two weeks;
- Pay Health
Canada the sum of $4,287.00 forthwith;
- Be subjected to
a minimum of two audits per year for the following two years; and
- Pay the MDA the
sum of $34,000.00 as a contribution to its costs associated with the
investigation, prosecution and hearing of the matter.
[10]
A few days later, the Applicant, through his
counsel at the time, sought to be re-enrolled as a dental provider under the
Program. His application was denied by the FNIH Manitoba Branch on March 30,
2011, with reasons provided to the Applicant on May 18, 2011. Those reasons
were that the Applicant’s billing history created financial risk to the Program
and that in any event, no further dental providers were required at the time in
the geographic area where the Applicant practices dentistry.
[11]
There is evidence that the Applicant made two
further unsuccessful attempts to be re-enrolled as a Program dental provider in
early 2012 and 2013.
[12]
On April 23, 2013, the Applicant, through his
current counsel, re-applied for re-enrolment. This request was again denied.
On October 10, 2013, the Applicant was informed in writing that his latest
request for re-enrolment had been reassessed by Health Canada and that the dismissal of his application had been confirmed. This decision reads as
follows:
Please note that Health Canada had
re-assessed your application for provider status on September 9, 2013 based on
both the administrative and operational requirements of the Program. In the
case of your re-application, the records indicate that you have a billing history
that created financial risk to the NIHB Program. As it stands, we can confirm
that your recent application for dental status with the NIHB Program has been
denied.
[13]
It is this latest decision – of October 10, 2013
– that the Applicant is challenging by way of the present judicial review
application (the Impugned Decision).
II.
Issues
[14]
The Applicant raises two issues.
[15]
The first – and main - issue is whether the
Respondent breached the rules of procedural fairness. The Applicant claims in
this regard that the Impugned Decision has been made “in
flagrant violation of the most basic principles of procedural fairness”.
He contends that the initial decision to remove his name from the Program’s
dental providers list and put it on the so-called “Do-Not-Register
List” has tainted his subsequent applications to be re-enrolled in the
Program with the result that he was “permanently
blacklisted” without even having been informed of the case he had to
meet and given an opportunity to make meaningful representations in response.
[16]
The Applicant further submits in this regard
that there is a reasonable apprehension of bias on the part of the Regional
Dental Officer of the FNIH Manitoba Branch, Mr. Terry Hupman. He claims that
Mr. Hupman, who was involved in each and every decision regarding his status
under the Program, from the decision to launched the on-site audit in 2006 to
the Impugned Decision, has demonstrated a “closed mind” throughout the entire
process.
[17]
As an alternative issue, the Applicant claims
that the Impugned Decision is unreasonable as it fails to address the issues
raised in the letter that accompanied his April 2013 request for re-instatement
and to provide an analysis as to why, five years after having been deprived of
his Provider status based on information dating back to 2005, he was still
representing a financial risk to the Program in the absence of evidence of
further incidents. The Applicant says that these failures affected both the
transparency and intelligibility of the decision and its defensibility in
respect of the facts and the law.
[18]
It is not disputed by the parties that
procedural fairness issues are reviewable on a standard of correctness (Mission
Institution v Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at para 79; Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Greenpeace
Canada v Canada (Attorney General), 2014 FC 463, at
para 21; Sketchley v Canada (Attorney General), 2005 FCA 404, [2006] 3
FCR 392 at para 53). Neither is it disputed that the decision itself is to be
reviewed on a standard of reasonableness which requires the existence of
justification, transparency and intelligibility within the decision-making
process and which requires also that the decision fall within a range of
possible, acceptable outcomes defensible in respect of the facts and law (Dunsmuir,
above, at para 47).
[19]
The Respondent claims, as a preliminary
objection, that the proper Respondent in these proceedings is the Attorney
General of Canada, not the Minister of Health as the Minister, pursuant to Rule
303 of the Federal Courts Rules, is neither directly affected by the
relief sought in the proceedings nor required to be named as a party under an
Act of Parliament under which the proceedings are brought.
[20]
While it is correct to say that the Minister of
Health is not required to be named as a party to these proceedings by virtue of
an Act of Parliament, including the Department of Health Act, SC 1996 c
8, from which the Minister derives most of her authority, I am not satisfied
that the Minister is not a person directly affected by the relief sought by the
Applicant. On this point, I agree with Madam Justice Johanne Gauthier’s
approach (as she was then) in 1018025 Alberta Ltd. v Canada (Minister of
Health), 2004 FC 1107, 262 FTR 314 (Alberta Ltd), a case also involving
the Program, which is to say that to the extent the Applicant seeks an order
mandating that his re-enrolment application be reviewed on the merits, the
modification to the style of cause sought by the Respondent is not warranted.
As the authors Saunders, Rennie and Garton correctly point out in Federal
Courts Practice, Carswell, 2015, at page 732, it is common ground to name
the responsible Minister in judicial review applications taken against
decisions of Ministers in matters where there is but one party. This is the
case here.
III.
Analysis
A.
The Procedural Fairness Issue
[21]
Both parties claim that the issue at stake is
not so much whether a duty of fairness was owed to the Applicant, but rather
what is the content of that duty. As the Respondent correctly points out, the
duty of procedural fairness is a flexible and variable concept and its precise
configuration will depend on the circumstances of each case (Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para 21 (Baker)).
[22]
Baker, above,
sets out a non-exhaustive list of factors that are relevant in the
determination of the precise content of the duty of procedural fairness in a
given set of circumstances. These factors are:
- The nature of
the decision being made and the process followed in making it;
- The nature of
the statutory scheme;
- The importance
of the decision for the person affected by it;
- The legitimate
expectations of the parties; and
- The procedure
chosen by the decision-maker.
[23]
The Respondent submits, based on the Baker
factors, that the present case falls towards the lower end of the procedural
fairness spectrum, meaning that the Applicant was owed no more than minimal
procedural fairness. The Respondent says that a minimum, the Applicant was
informed of the case he had to meet and that there was no bias on her part and
that, accordingly, her duty of fairness was met. The Applicant claims that he
was owed a slightly higher – that is a “moderate-to-low”
- degree of procedural fairness, which means at a minimum being informed of the
case to meet, being given the opportunity to make meaningful representations
and having his case decided by an unbiased tribunal. What separates the
parties on this point is quite subtle.
[24]
In Alberta Ltd, above, the Court ruled
that the duty of fairness on the decision-maker in that case – the Director of
Health Canada’s Non-Insured Benefits Branch for the Alberta region – was “quite limited” but did not defined what this implies.
The Applicant points out that Alberta Ltd can be distinguished on the
facts and, therefore, the duty of fairness owed in this case differs from that
of Alberta Ltd. Indeed, in Alberta Ltd., the Court was mostly
concerned with the validity of an underlying policy decision on the basis of
which the decision to dismiss the enrolment application had been made. That
policy decision was to impose a moratorium on the issuance of new service
providers’ numbers in Alberta for medical supplies and equipment.
[25]
However, despite the lack of definition of “quite limited” in Alberta Ltd and the fact
that it can be distinguished on the facts, I am satisfied that the duty of
procedural fairness owed in the circumstances of the present case was minimal,
in the sense that the Applicant had the right to know the case to meet before
the Impugned Decision was made and have this decision made by an impartial
decision-maker. This conclusion is the result of the application of the Baker’s
factors, as detailed below.
(1)
The Baker Analysis
[26]
As conceded by the Applicant, the “nature of the decision” factor does not point to a
high degree of procedural fairness. Nothing in decision-making process leading
to the acceptance or rejection of an application for dental provider status
resembles the judicial process. This process is rather within the managerial
responsibility of a specialized unit of a government department running a
program set up, as per Cabinet policy, under general ministerial powers (Alberta
Ltd, at para ii). This is a purely administrative process and, as such, it
is at the very low-end of the spectrum of administrative decision-making
processes.
[27]
The Applicant also concedes that there is no
specific statutory scheme relating to the Program. This normally suggests a
very low level of procedural fairness. He claims however that since he does
not benefit from a statutory appeal, a higher degree of procedural protections
is required. This argument cannot stand. There is no statutory appeal because
there is no statutory scheme in the first place. In any event, as a matter of law, in the absence of statutory restrictions,
non-adjudicative decisions may be reconsidered and varied (See: Brown &
Evans, Judicial Review of Administrative Action in Canada, 1998, loose leaf,
Canvasback Publishing, Toronto, at 12:6100). Here, the evidence on
record shows that requests for dental provider status can be submitted and
re-submitted and even re-assessed. This points also to a very low level of
procedural fairness (Baker, above at para 24).
[28]
The Applicant contends that the impact of the
Respondent’ decisions to terminate his dental provider status and to deny his
applications for re-enrolment on his income and ability to practice his
profession attracts a high degree of procedural fairness. However, it is
important to put the relationship between the parties in its proper
perspective. There is no right in the first place to become a Program service
provider. The dental provider status is more akin to a privilege. It is often
referred to in the record as a “billing privilege”
and it represents exactly what the status is. Indeed, as I have said, the
status of dental provider entitles their holders to bill directly – and be paid
by – Health Canada for services provided to a clientele which, in large part,
is financially vulnerable. For dental providers, the Program is more of a
business opportunity. The Applicant’s right to practice dentistry in the
province of Manitoba and ability to gain a livelihood are unaffected by the
Impugned Decision or by the decisions that preceded it.
[29]
The Applicant’s reliance on this Court’s
judgment in Koulatchenko v Financial Transactions and Reports Analysis Center of Canada, 2014 FC 206, is not helpful in this respect. In that case, an
employee of the Financial Transactions and Reports Analysis Center of Canada, a
creature of statue, was challenging a decision of the agency’s Director not to
issue her a Top Secret clearance and to revoke her appointment as a result.
The Court found that decision to be of “significant
importance to the applicant”, as it was not only ending her employment
with the agency but likely making her unemployable across the federal
government (Koulatchenko, at para 84). Yet, the Court ruled that the
duty of procedural fairness owed to Ms. Koulatchenko was “minimal” (Koulatchenko, at para 84). I believe
it is fair to say that the impact of that decision on Ms. Koulatchenko was of
greater magnitude than that of the Impugned Decision on the Applicant and that
no more than an equal “minimal” duty of
procedural fairness was required in the present case.
[30]
As for the legitimate expectations factor, it does not, in my
view, influence the content of the duty of fairness in this
case either. As is well established, the doctrine of legitimate
expectations is based on the principle “that the circumstances affecting procedural fairness take
into account the promises or regular practices of administrative
decision-makers, and that it will generally be unfair for them to act in
contravention of representation as to procedure, or to backtrack on substantive
promises without according significant procedural rights” (Baker,
at para 26). Here, the Applicant admits that there is no evidence before the
Court that he had legitimate expectations with respect to the Respondent’s
decision-making process.
[31]
However, he claims that he had a reasonable
expectation that the decisions on his applications for re-enrolment would not
be based on the so-called “Do not Register List”,
considering that the existence of that list was kept from him and that his
applications should be considered on their own merits. The Applicant puts a
lot of emphasis on being placed on that list. He claims, as I understand it,
that this resulted in automatic rejections of his re-enrolment applications,
without any consideration of the factors that might militate in favour of his
re-instatement in the Program.
[32]
According to the evidence, that list is an “internal management tool” kept and used by the
Program Billing and Payment Processors to facilitate the enrolment process. I
agree with the Respondent that having one’s dental provider status terminated
goes hand-in-hand with being placed on that list, especially when termination
results from billing practices that put the Program financially at risk. It is
a means, I would imagine, of flagging names of people formerly with the Program
who were dismissed from the Program for noncompliance with its terms and
conditions. After all, the Program is run with public funds and those running
it have a duty to protect the public interest by ensuring that these funds are
spent properly (Alberta Ltd, above at para xxiv).
[33]
In such context, the Applicant could only expect
that re-instating the Program would be an up-hill battle because of his billing
history which, according to the judgment of his peers on the Inquiry Panel, amounted
to serious professional misconduct – a judgment that fell only a few days prior
to the filing of his first re-enrolment application. There is no evidence on
record that the Applicant was promised that his billing history would not be a
factor in the decisions to be made on his re-enrolment applications. There is
no evidence either that this factor was not the main reason for not
re-instating the Applicant in the Program. In these circumstances, I can only
think of the “Do not Register List” argument as a
red herring.
[34]
Finally, the factor relating to the
decision-maker’s choice of procedure is also not helpful to the Applicant.
This factor calls for some deference on the part of the reviewing court for the
choices of procedure made by the decision-maker. Here, the Program provides
for a clear and well-established procedure for the consideration of
applications for provider status. This procedure is set out in the NIHB
Dental Claims Submission Kit. The Applicant submits that the Program’s
choice of procedure was blurred by the fact his name was put on the “Do Not Register List”. Again, for the reasons I have
just given, this argument carries no weight.
[35]
Therefore, the issue here is whether the
Applicant, when he applied for re-enrolment in April 2013, knew the case he had
to meet and whether the ensuing decision – the Impugned Decision - was made by
an unbiased decision-maker.
(2)
Right to Know the Case to Meet
[36]
The fundamental difficulty with the Applicant’s
position is his invitation to the Court to look back at the process that led to
the decision to terminate his dental provider status in December 2008. As I
indicated earlier, he claims that this decision was rendered in complete
disregard of the most basic principles of procedural fairness and that it has
tainted all of his subsequent applications for re-enrolment.
[37]
The problem is that this decision was never
judicially challenged. The 30-day delay for doing so had long expired and no
motion to extend the time to file a notice of application was ever submitted.
The decision being challenged in this case is the Impugned Decision. I fail to
see on what basis the Court could also rule on the validity of a decision that
was rendered more than six years ago and of which the Applicant was fully aware
as evidenced by the letter his counsel at the time wrote to the Program in
order to voice his concerns about the decision.
[38]
This, in my view, would defeat the principle of
finality and certainty of decisions. As the Federal Court of Appeal stated in Larkman
v Canada, 2012 FCA 204, at para 87:
The need for finality and certainty
certainly underlies the thirty day deadline. When the thirty day deadline
expires and no judicial review has been launched against a decision or order,
parties ought to be able to proceed on the basis that the decision or order
will stand. Finality and certainty must form part of our assessment of the
interests of justice.
[39]
The December 2008 decision has to be taken as a
background fact to this case. It establishes that the Applicant’s dental
provider status was terminated for the reasons outlined in the decision. It is
too late now to decide whether that decision should be disregarded because it
is allegedly unreasonable or has been made in breach of the duty of procedural
fairness.
[40]
In any event, when one looks at that decision as
part of a continuum that led to the Impugned Decision, as the Applicant urges
the Court to do, then one wonders what would be achieved, for the purposes of
determining the validity of the Impugned Decision, in ruling that somehow the
status revocation decision was procedurally flawed or unreasonable, when a
little more than two years after it was rendered, the Applicant pleaded guilty
to two charges of professional misconduct between the period of April 2005 to
December 2007, in relation to his billing practices as a Program dental
provider and the MDA’s Inquiry Panel that received that plea, qualified that
misconduct as “serious” and as “a significant departure from the standards of practice of
the profession”.
[41]
I am therefore satisfied that when he applied
for re-enrolment in April 2013, the Applicant knew fully well the case he had
to meet in order to be re-instated in the Program: his status of dental
provider had been terminated on the basis of ongoing concerns regarding his
billing practices; he had subsequently pleaded guilty to charges of
professional misconduct in relation to these practices; and he had already been
refused re-instatement on the basis of his billing history with the Program.
[42]
As a matter of fact, he must have known the case
he had to meet as the main pitch of his April 2013 re-enrolment application, as
appears from his counsel’s letter, was that he acknowledged having made errors
in his billing practices, that these errors were however unintentional and
dating back to 2005 and that he had now “more than
served his sentence” for these errors.
(3)
Right to an Impartial Decision-Maker
[43]
The Applicant claims that Mr. Hupman, the Regional
Dental Officer of the FNIH Manitoba Branch, have demonstrated a closed mind
with respect to his status in the Program, starting with finding him “dismissive and arrogant”, then by presenting a case
to have his dental provider status terminated, by refusing to have a meeting
following that decision on the ground that there was nothing to be gained at
that point, by testifying that he had given up on him, and by being involved in
all subsequent decisions denying his re-enrolment applications.
[44]
Based on this, he submits that “a reasonably informed bystander could reasonably perceive
bias” on the part of Mr. Hupman (Newfoundland Telephone Co. v
Newfoundland Public Utilities (Public Utilities Board), [1992] 1 S.C.R. 623,
at para 22).
[45]
I agree with the Respondent that this falls
short of establishing that the Impugned Decision was rendered by a biased
decision-maker. First, deciding whether or not to re-enrol a dentist in the
Program is not a decision of a judicial or adjudicative nature, which calls for
a less demanding standard of impartiality (Anderson v Canada (Customs and Revenue Agency), 2003 FCT 667, 234 FTR 227, at para 48). Second,
Mr. Hupman, although he was involved in the decision-making process that led to
the Impugned Decision, was not the ultimate decision-maker as the Applicant’s
re-enrolment application was re-assessed by Program’s officials in Ottawa who confirmed Mr. Hupman’s recommendation to dismiss the application.
[46]
It is clear from the evidence that the Applicant and
Mr. Hupman did not share the same view as to how the Program worked and how it
was to be billed by dental providers. In retrospect, Mr. Hupman may have had a
point. One could very well say that he was just doing his job in protecting the
public interest by ensuring proper spending of public funds.
[47]
For all these reasons, I see no merit to the
Applicant’s argument that the Impugned Decision was made in violation of the
principle of procedural fairness.
B.
Reasonableness of the Decision
[48]
The Applicant claims, in the alternative, that
the Impugned Decision does not provide the requisite degree of justification,
transparency and intelligibility and is not defensible in respect of the facts
and law as it fails to address any of the concerns raised and the comments made
in the letter that accompanied the April 2013 re-enrolment application.
[49]
In that letter, the Applicant, as I have
indicated earlier, acknowledged having made errors in his billing practices in
2005 and indicated having fully complied with the decision of the MDA’s Inquiry
Panel. He also claimed that there had been no further incidents or complaints
to the MDA regarding his practice since the Program’s complaint, and stated
that he was being inappropriately targeted by the Program.
[50]
In other words, the Applicant’s plea is that he
has paid his due for incidents that occurred some years ago and that time has
come to re-instate him in the Program. The Respondent did not allow that to
happen on the basis of a billing history that created financial risk for the
Program.
[51]
There is no right to a dental provider status
under the Program and no right to re-enrolment once that status has been
terminated. The Program is a publicly funded program which has been
established under general ministerial powers and which is run by a specialized
unit of a government department. As for any other government programs, the
protection of the public interest in ensuring proper spending of public funds
is – and must be - a paramount consideration in the administration of the
Program. All these considerations are factors showing that decisions taken
under the Program are discretionary in nature and are owed significant
deference (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190). As long as they are not based on irrelevant considerations or on a
perverse or capricious finding of fact, they must be allowed to stand.
[52]
Here, I find the Impugned Decision is both
defensible on the facts and the law and is transparent and intelligible.
Re-enrolment in the Program was refused to the Applicant based on his billing
history and the financial risk it created for the Program. This is supported
by the evidence on record. The Applicant now admits having made errors in this
regard. Those who run the Program have opted to take what appears to be a zero
risk approach with respect to the Applicant. When it comes to the management
of public funds, I cannot say, given the facts of this case, that this approach
was based on irrelevant considerations or on a perverse or capricious finding
of fact.
[53]
It is true that the Impugned Decision could have
been more explicit with respect to the content of the letter that accompanied
the April 2013 re-enrolment application. However, as stated by the Supreme
Court of Canada in Newfoundland and Labrador Nurses' Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, reasons for
decisions need not to be perfect or comprehensive and as long as they allow the
reviewing court to understand why the decision-maker made its decision, the
decision is allowed to stand:
Reasons may not include all the arguments,
statutory provisions, jurisprudence or other details the reviewing judge would
have preferred, but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis. A decision-maker is not
required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion (Service Employees’
International Union, Local No. 333 v. Nipawin District Staff Nurses Assn.,
[1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
[54]
This means that although the Court is not
allowed to substitute its own reasons, it may, if it finds
it necessary, “look to the record for the purpose of
assessing the reasonableness of the outcome” (Newfoundland Nurses,
above at para 15).
[55]
I am satisfied that the Impugned Decision meets
that threshold. Looking at the record, I have no difficulty understanding why
the Impugned Decision was made.
[56]
The Applicant’s judicial review application is
dismissed. Costs are awarded to the successful party.
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