Docket: T-1513-16
Citation:
2017 FC 431
Ottawa, Ontario, May 2, 2017
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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GUY CHARLES
FONTAINE
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision which found that the Applicant is not eligible for support available
pursuant to the Thalidomide Survivors Contribution Program (“Program”). The
decision, dated August 23, 2016, was made by Crawford and Company (Canada) Inc
(“Administrator”), the third-party administrator of the Program.
Background
[2]
On February 13, 1990 the then Minister of
National Health and Welfare announced that the federal government was providing
$7.5 million in payments to an estimated 75 to 100 people who were born in
Canada and whose mothers took Kevadon or Talimol, the trade names under which
thalidomide was marketed, during their pregnancies. Thalidomide damaged limbs
and other external and internal organs in children born to mothers who took the
drug in the first trimester of their pregnancy. The press release stated that
in Canada thalidomide was distributed under its trade names from July 17, 1959
until its recall by the government on March 2, 1962. Thalidomide victims had
one year to establish their eligibility to receive this assistance, which was
to supplement amounts received by them from the manufacturers of the drug, and
that the making of the payments was not an admission of any legal liability or
responsibility by the government of Canada.
[3]
On May 10, 1990 the Governor-in-Council
promulgated Order-in-Council PC 1990-4/872, an Order “respecting
ex gratia payments to persons infected with the human immunodeficiency
virus (HIV) through blood products in Canada and to Canadian thalidomide
victims” (“First OIC”). The First OIC
allowed for certain individuals affected by maternal ingestion of thalidomide
to receive two monetary payments if they applied to the Minister of Health
before February 14, 1991. On December 16, 1991, the Governor-in-Council
promulgated Order-in-Council PC 1991-7/2543 (“Second
OIC”) which amended some definitions contained in the First OIC and
retroactively extended the deadline to submit applications to September 1, 1991.
[4]
Health Canada distributed the funding authorized
by the First and Second OICs in accordance with the “Extraordinary
Assistance Plan for Thalidomide Victims of 1991” (“1991 EAP”). The 1991 EAP required that
applicants meet one or more of three eligibility criteria being: (1) verifiable
information of the receipt of a settlement from the drug company (“criteria 1”);
or (2) documentary proof (eg. medical or pharmacy records) of the maternal use
of thalidomide (brand names Kevadon or Talimol) in Canada during the first
trimester of pregnancy (“criteria 2”); or (3) listing on an existing government
registry of thalidomide victims (“criteria 3”).
[5]
On March 6, 2015 the Minister of Health
announced a new package of financial assistance to help support the immediate
and ongoing needs of those affected by thalidomide, the details of the Program
were announced on May 22, 2015. This was comprised of a one-time lump sum
payment of $125,000 to each thalidomide victim, ongoing yearly support and the
creation of an annual Extraordinary Medical Assistance Fund. The Program
created two categories of eligible participants. The first being Canadian
thalidomide survivors who were compensated as per the 1991 EAP. The second
being “new” applicants who met one of the three
eligibility requirements set out in the 1991 EAP.
[6]
The Applicant was born on March 5, 1959. On
October 15, 2015 he contacted Health Canada to request information about the
Program, this was sent to him on November 27, 2015. On January 19, 2016,
counsel for the Applicant contacted the Administrator by email advising that the
Applicant had informed him that his mother was administered thalidomide while
pregnant with the Applicant. Further, that the drug manufacturer had provided
her physician with free drug samples, prior to regulatory approval. The email
described the Applicant’s deformities and stated that counsel understood that
the Applicant was in the process of referral to an orthopedic specialist to
confirm that his deformities were linked to his mother’s ingestion of
thalidomide. On January 21, 2016 the Administrator wrote to the Applicant’s
counsel providing him with the three qualifying criteria.
[7]
On February 25, 2016 the Applicant submitted a
Qualification Application. On March 4, 2016, the Administrator
contacted the Applicant’s counsel by email advising that further documentary
proof was required of the Applicant’s mother’s ingestion of thalidomide under
the brand names Kevadon or Talimol during her first trimester of pregnancy. On
the same date the Administrator wrote to the Applicant by email listing other
documentary proof that may be considered acceptable if he was having difficulty
proving his mother’s ingestion of thalidomide. A follow-up was sent by letter
dated April 12, 2016 indicating that the Applicant had until May 3, 2016 to
submit additional information, including documentary proof of one of the three 1991
EAP criteria. Counsel for the Applicant responded to the Administrator by
letter dated April 26, 2016 advising that the Applicant did not meet criteria 1
and 3 of the 1991 EAP eligibility requirements and that the documentary proof
required by criteria 2 was difficult to obtain in his circumstances. Counsel
sought an extension of time to provide an orthopedic specialist’s assessment,
failing which injunctive relief would be sought. On August 11, 2016, the
Administrator emailed counsel acknowledging receipt of his April 26, 2016
reply and stating that if the request for an extension was in regard to
obtaining a medical opinion as to the possible reasons for the Applicant’s
injuries, this would not satisfy the 1991 EAP criteria. The Administrator
asked counsel to advise if any further information would be provided in support
of the Applicant’s eligibility as the Administrator was at a point in its
review where it could render its decision. The Administrator issued its
negative decision on August 23, 2016, which decision is the subject of this application
for judicial review. The Administrator subsequently declined the Applicant’s
request that it reconsider its decision.
Decision Under Review
[8]
The Administrator’s decision letter stated that
in order to qualify as a Canadian Thalidomide Survivor under the Program,
individuals must satisfy one of the three criteria set out in the 1991 EAP, and
reproduced those criteria. The letter stated that a thorough review of the
Applicant’s Qualification Application and supporting documentation had been
completed. Further, that all applications had also been subject to a secondary
review to ensure that all information provided had been fully considered. Following
both of these reviews, the application did not satisfy any of the three
criteria and, therefore, the Applicant was not eligible for support under the
Program. The Administrator also noted that all decisions are deemed final.
Issues
[9]
The Applicant identifies three issues, which he
states as follows:
1. Did the Administrator deny the Applicant administrative fairness and
natural justice in denying his application for participation in the
compensation program?
2. Would such a denial in circumstances where the Applicant was
requesting the opportunity to present medical opinion evidence be a denial of
administrative fairness subject to remedy of this Court?
3. Would the restriction of consideration to the stated criteria be
unreasonable and subject to judicial remedy?
[10]
However, in my view, in light of the Applicant’s
arguments, the manner in which the Respondent has framed the issues is more
appropriate, being:
- Is the reasonableness of the Program’s eligibility criteria
within the proper scope of a judicial review of the Administrator’s
decision?
- Was the Administrator’s decision procedurally fair?
Standard of Review
[11]
The parties have not made any submissions on the
requisite standard of review.
[12]
The first issue is concerned with the scope of
this Court’s powers on an application for judicial review, not with the
decision of the Administrator. Accordingly, there is no application of a
standard of review.
[13]
As to the second issue, it is well-established
that issues of procedural fairness are reviewable on the correctness standard
(Mission Institute v Khela, 2014 SCC 24 at para 79; Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12 at para 43).
Issue 1: Is the reasonableness of the Program’s
eligibility criteria within the proper scope of a judicial review of the
Administrator’s decision?
Applicant’s Position
[14]
As a preliminary comment I note that the
Applicant’s written submissions were somewhat difficult to follow. And,
although he identified three issues as set out above, his submissions did not
follow or clearly correspond to those issues.
[15]
In essence, he appears to suggest that the
stated 1991 EAP eligibility criteria were unreasonable. Further, but less
clearly, the suggestion appears to be that the fact that his date of birth,
March 5, 1959, preceded the date on which the Respondent indicates thalidomide
was first distributed in Canada, being July 17, 1959, should not be a
determinative factor. In this regard, the Applicant submits that the
Respondent did not have knowledge of the exact date that trade formulations of
thalidomide were introduced into the Canadian market and any such knowledge
appears to be industry generated. In the Applicant’s view, such information is
hearsay and does not fall within the business records exception to inadmissible
hearsay or statutory business records exceptions. He submits that reliance on
industry data gives rise to authentication issues, issues of hearsay and
difficulties in testing the evidence. Further, the potential liability issues
that the thalidomide manufacturers were facing at the time of the subject
correspondence suggests that the motivation to misrepresent the date of entry
into the Canadian market cannot be ruled out. As well, given the asserted gaps
in primary materials as to introduction of the drug into Canada, including
whether it was distributed under the guise of marketing or if physicians
individually ordered it from sources outside of Canada, and the evidence on
cross-examination of Ms. Cindy Moriarty, an Executive Director at Health
Canada, on her affidavit affirmed on October 26, 2016 (“Moriarty Affidavit”) “it stands to reason that Canada by its witness acknowledges
that the birth date is not itself a criterion for compensation”.
[16]
When appearing before me the Applicant’s
submission was, essentially, that because for reasons beyond his control the
documentary proof required to establish eligibility pursuant to criteria 2 of
the 1991 EAP was impossible for him to obtain, the criteria were unreasonable
as they were contrary to the objective of the Program. And because the
Administrator would not accept his anticipated medical opinion evidence, he was
denied procedural fairness on the basis that he was not afforded a full and
fair hearing. The Applicant relied heavily on Gehl v Canada (Attorney
General), 2017 ONCA 319 (“Gehl”) in support of his view that the
Court can look at the social context behind the eligibility criteria to
determine if they are reasonable and, if they are not, the Court can declare
that the Administrator must accept and consider the proposed new evidence.
Respondent’s Position
[17]
The Respondent submits that the Program’s
eligibility criteria are not subject to judicial review. The Program is not
founded upon a legal obligation - contractual, statutory or otherwise - to
provide support to Canadians affected by thalidomide. Nor was the Crown’s
decision to provide support carried out through a statute, regulation or other
enactment. Rather, it was an exercise of authority granted to the Minister by
s 4 of the Department of Health Act, SC 1996, c 8 (“Act”). The ex
gratia payments contemplated by the Program are funded by monies already
allocated to Health Canada for the general purpose of fulfilling its statutory
mandate. As such, the Program falls squarely within the Crown’s prerogative
power over the expenditure of public funds.
[18]
Prerogative power is the discretionary authority
of the Crown which has not been overtaken by statute. It is not subject to
judicial review, save for constitutional scrutiny, and it is for the executive
and not the courts to decide whether and how to exercise prerogative powers (Canada
(Prime Minister) v Khadr, 2010 SCC 3 at paras 34, 36-37 (“Khadr”); Hospitality
House Refugee Ministry Inc v Canada (Attorney General), 2013 FC 543 at para
12 (“Hospitality House”)). The Respondent submits that the Applicant is
not asking this Court to review the manner in which the Administrator applied
the Program’s eligibility criteria to his application, which he acknowledges he
cannot satisfy, but is contesting the criteria themselves and is taking issue
with the Crown’s decision as to who receives the ex gratia payments. This
is a challenge to the Crown’s prerogative power over the expenditure of funds
which is not subject to judicial review (see Pharmaceutical Manufacturers
Assn v British Columbia (Attorney General), [1997] BCJ No 1902 (BCCA)).
[19]
The Respondent submits that the Program’s
eligibility criteria are also immune from judicial review as they constitute a
policy decision by a Minister of the Crown (Dixon v Canada (Somalia Inquiry
Commission), [1997] FCJ No 985 (FCA) at para 17 (“Dixon”), leave to
appeal to the Supreme Court of Canada dismissed in [1997] SCCA No 505 (QL)). The
wisdom and reasonableness of a policy is outside the scope of judicial review (Canadian
Society of Immigration Consultants v Canada (Citizenship and Immigration),
2011 FC 1435 at para 103 (“Canadian Society of Immigration Consultants”);
Western Grain Elevator Assn v Canada (Attorney General), 2014 FC 337 at
para 37, aff’d in 2012 FCA 194, leave to appeal to the Supreme Court of Canada
dismissed in 2012 CarswellNat 5001 (WL); Jafari v Canada (Minister of
Employment and Immigration), [1995] 2 FC 595 (FCA) at para 14; Canada (Attorney
General) v Mercier, 2010 FCA 167 at paras 75-76, leave to appeal to the
Supreme Court of Canada dismissed in [2010] SCCA No 331 (WL)). For these
reasons, Gehl has no application.
[20]
As both an exercise of Crown prerogative over
the expenditure of funds and as a Ministerial policy decision, the Program eligibility
criteria are not justiciable. The Administrator’s role was to determine if the
Applicant met the eligibility criteria and it did not have authority to expand
or alter the criteria. Nor does this Court have jurisdiction to assess the
criteria chosen by the Crown or, as the Applicant requests, establish new
criteria.
Analysis
[21]
Given the submissions of the Applicant, it is
perhaps appropriate to remark that judicial review is directed at the legality,
reasonableness and fairness of the procedures employed and the actions taken by
government decision-makers, or in this case, their delegates (Canada (Attorney
General) v TeleZone Inc, 2010 SCC 62 at para 24; Dunsmuir v New
Brunswick, 2008 SCC 9 at para 28). Here the decision under review is that
of the Administrator whose role was to determine if applicants met the
eligibility requirements of the Program. The Administrator did not establish
those criteria.
[22]
In that regard, there were two groups of people
who could be found to be eligible for support under the Program. The first was
Canadian thalidomide survivors who were compensated as per the 1991 EAP. The
second was new applicants who met one of the three eligibility requirements set
out in the 1991 EAP.
[23]
I acknowledge that in his affidavit made in support
of this application, the Applicant stated that before his mother’s death in
1984 she told him that her physician had provided her with morning sickness
pills and that she later inferred that she had been provided with thalidomide. Further,
that in 1991 the Applicant contacted a Mr. Cliff Chatterton of the War Amps
organization who had lobbied for the thalidomide settlement and was
representing survivors. The Applicant deposes that Mr. Chatterton advised him
that there was no point in applying as he was born before thalidomide was
available in Canada. The Applicant states that he explained to Mr. Chatterton
that it was his understanding that doctors were giving out morning sickness
pills containing thalidomide without prescription at the time of his mother’s
pregnancy and that his mother had told him that she had taken a thalidomide
containing drug and had so told family and members of the community. In
response, Mr. Chatterton reiterated that the Applicant was too old and nothing
could be done.
[24]
However, regardless of the Applicant’s reason
for not applying in 1991 and whether the advice of Mr. Chatterton was well-founded
or not, the salient fact is that the Applicant did not apply for and did not
receive compensation in 1991. In the result, he could only fall within the
second group of people who could be found to be eligible for support under the Program,
being new applicants who were required to meet one of the three eligibility
criteria set out in the 1991 EAP. When appearing before me, both parties were
in agreement that being born after thalidomide was known to be available in
Canada was not one of the three stated eligibility criteria. I would note only
that while this may be implicit in criteria 2, the Applicant’s date of birth
was not the basis on which the Administrator made its decision.
[25]
In his April 26, 2016 correspondence to the
Administrator, counsel for the Applicant acknowledged that the Applicant did
not meet the first of the three 1991 EAP criteria as he had not previously been
in receipt of a settlement from a drug company. Nor did he meet the third
criteria as he was not listed on an existing government registry of thalidomide
survivors. As to the second criteria, documentary proof (for example, medical
or pharmacy records) of maternal use of thalidomide (brand names Kevadon or
Talimol) in Canada during the first trimester of pregnancy, counsel stated
that:
a) his mother’s physician, Claude
Murphy, is likely deceased, and even if alive would be quite elderly and in any
event he is not listed as a presently licensed physician in Manitoba. I note
that in Mr. Fontaine’s recollection his mother had not suspected drug
involvement, took her son’s condition as fated, that she told him that he was
lucky that he was not like her doctor’s son (the physician has administered the
medication to his spouse and that doctor’s son, Paul was born without arms and
legs) and accordingly he has no reasonable expectation that the physician had
documented Mr. Fontaine’s condition as being ascribable to thalidomide
administration.
Additionally due to Mr. Fontaine’s growing
up in an isolated Metis Community, St. Laurent, Manitoba, there was no local
pharmacy, and he is unable to access any pharmaceutical records pertaining to
his mother. In any event we understand the physician administered the
thalidomide prior to formal government regulatory approval, as drug company
physician promotion (which promotion practice was known to government
regulators or ought to have been known) and, not through a pharmacy. Accordingly
we do not anticipate there were any formal pharmaceutical prescription records.
[26]
By email of March 4, 2016, the Administrator
advised that if the Applicant was having difficulty providing proof of his
mother’s ingestion of thalidomide then the following may also be considered
acceptable documentary proof: (1) a copy of a doctor’s prescription indicating
thalidomide was prescribed for the individual’s mother during the first
trimester of pregnancy; or (2) hospital birth records of the individual making
reference to his/her mother’s ingestion of thalidomide during pregnancy; or (3)
other medical/pharmacy records indicating that the individual’s mother was
prescribed/ingested thalidomide during pregnancy; or (4) if no records are
available, proof in the form of a sworn affidavit from a medical professional
with direct knowledge of the event may be acceptable, eg. physician stating
that he/she prescribed thalidomide to his/her mother during pregnancy. It is
clear from the record that the Applicant did not provide the required
documentary proof, nor does the Applicant contest this.
[27]
In his application for judicial review the
Applicant is not suggesting that the Administrator erred by unreasonably
applying the eligibility criteria to the evidence which he presented in support
of his application. Rather, that the criteria themselves were unreasonable
and/or that the Administrator erred by limiting itself to the application of
those criteria when it should have taken a more nuanced approach which
considered the social context of the Program and that it was impossible for the
Applicant to meet the specified criteria.
[28]
In his Notice of Application the Applicant
seeks, amongst other things, that the Administrator’s decision be quashed and
that his claim be sent back for reconsideration with a direction from this
Court that valid proof for eligibility can be in the form of an expert medical
opinion that, on a balance of probabilities, his injuries are consistent with
first trimester maternal ingestion of thalidomide. Further, a declaration by
this Court that upon reconsideration any criterion not allowing such proof is
unreasonable and in error. The Applicant is asking the Court to find that the
Administrator unreasonably limited its assessment to the 1991 EAP criteria and,
in effect, that this Court create a new eligibility criteria.
[29]
Thus, the question is whether the Administrator
had the authority, and whether this Court has the jurisdiction, to do as the
Applicant asks. For the reasons below, I do not believe that the Administrator
could, or that this Court can, provide the remedy that the Applicant seeks.
[30]
It is clear from the record that the Program is
a compassionate one, providing ex gratia payments to thalidomide victims.
By way of example, I note that on May 22, 2015, the Minister stated that the
government, even in the absence of a legal obligation to provide support, had a
clear moral obligation to help meet the changing needs of thalidomide
survivors.
[31]
Thus, the Program is a voluntary humanitarian
effort. It is not founded on a legal obligation arising from statute, contract
or otherwise to provide this support and this is not disputed by the Applicant.
The Moriarty Affidavit states that the ex gratia payments are funded by
Health Canada’s existing budget, pursuant to the Minister’s authority to
promote and preserve the physical well-being of the people of Canada pursuant
to s 4(2) of the Act. The Respondent submits that the Program was effected by
prerogative power, therefore, it is not subject to judicial review by this
Court.
[32]
As to what comprises prerogative power, I note
that in Khadr the Supreme Court of Canada considered whether the remedy
sought in that case was precluded by the fact that it touched on Crown
prerogative power over foreign affairs. It defined the prerogative power as:
[34] The prerogative power is the “residue
of discretionary or arbitrary authority, which at any given time is legally
left in the hands of the Crown”: Reference as to the Effect of the Exercise
of the Royal Prerogative of Mercy Upon Deportation Proceedings, [1933]
S.C.R. 269, at p. 272, per Duff C.J., quoting A. V. Dicey, Introduction
to the Study of the Law of the Constitution (8th ed. 1915), at p. 420. It
is a limited source of non-statutory administrative power accorded by the
common law to the Crown: Hogg, at p. 1-17.
[33]
The Supreme Court of Canada concluded in Khadr
that prerogative power over foreign affairs had not been displaced by
legislation and continued to be exercised by the federal government. It also
stated that it is for the executive and not the courts to decide whether and
how to exercise its powers, but the courts have the jurisdiction and the duty
to determine whether a prerogative power asserted by the Crown does in fact
exist and, if so, whether its exercise infringes the Charter (Operation
Dismantle Inc v R, [1985] 1 S.C.R. 441 (SCC)) or other constitutional
norms (Air Canada v British Columbia (Attorney General), [1986] 2 SCR
539 (SCC)).
[34]
In Hospitality House, where an Order-in-Council
which changed the rules relating to health coverage for privately sponsored
refugees was challenged, this Court held that the Order was enacted under the
Crown’s prerogative power over the expenditure of funds and that such power is
reviewable on constitutional grounds, but not otherwise (at para 12).
[35]
Similarly, in Canadian Doctors for Refugee
Care v Canada (Attorney General), 2014 FC 651 (“Canadian Doctors”),
Justice Mactavish acknowledged, in the absence of a legislative requirement,
the Crown’s prerogative power in the context of spending. She also noted that
the Crown’s prerogative power is not immune from judicial scrutiny as the
exercise of the prerogative is subject to certain limits, it must be intra
vires federal jurisdiction, it must be procedurally fair (if a duty of
fairness is owed) and it must conform to the Charter (at para 402).
[36]
Finally, I note that in Mercier-Néron v
Canada (Minister of National Health and Welfare), [1995] FCJ No 1024 (FC) (“Mercier-Néron”),
this Court reviewed a decision denying an application for ex gratia
payments for thalidomide victims under the First OIC. In rendering that
decision, the Court found that compensation for those victims through ex
gratia payments is a matter that derives its enabling power from the royal
prerogative (at para 14).
[37]
Accordingly, in this matter, based on the
forgoing, I am satisfied that the Crown’s decision to make ex gratia payments,
including its stipulation as to who will be eligible to receive those payments
by the effecting of eligibility criteria, derives from and is an exercise of
the Crown’s prerogative power. The exercise of that power was not displaced by
legislation and it is not challenged by the Applicant as reviewable on
constitutional grounds and, as I have found below, it was not exercised in a manner
that breached any duty of procedural fairness that was owed. Accordingly, it
is not reviewable by this Court.
[38]
Moreover as noted above, the Applicant attacks
the eligibility criteria themselves. The Applicant does not assert that the
Administrator unreasonably applied the criteria, rather that it erred by not
expanding criteria 2 for new applicants to include opinion evidence, rather
than documentary proof of maternal ingestion of thalidomide, or by not creating
a new criteria in that regard. In my view, the Administrator had no authority
to do so in this circumstance and it reasonably applied the proof submitted by
the Applicant to the eligibility criterion.
[39]
Nor does this Court have jurisdiction to assess
the reasonableness of the existing criteria or to impose different or new
criteria. This is because the Program, which includes the criteria,
constitutes a policy decision by the Minister and is not subject to judicial
review. As stated by the Federal Court of Appeal in Dixon, it is well-established
that the courts have no power to review policy considerations which motivate
Cabinet decisions. Absent a jurisdictional error or constitutional challenge,
where Cabinet acts pursuant to a valid delegation of authority from Parliament,
it is accountable only to Parliament - and through Parliament to the Canadian
public - for its decisions (Dixon at para 17).
[40]
This is also demonstrated in Canadian Society
of Immigration Consultants, where Justice Martineau stated that:
[103] …regulations or policies of the
Governor in Council or the Minister are not reviewable, except in cases of
excess of jurisdiction, failure to comply with legislative or regulatory
requirements. In other words, it is not open to a court to determine the wisdom
of the regulation or policy and to assess their validity on the basis of the
court’s preferences. See Canadian Council for Refugees v. R., 2008 FCA
229 (F.C.A.) at para 57 and Mercier c. Canada (Service correctionnel),
2010 FCA 167 (F.C.A.) at paras 78 and 80. Such approach is entirely consistent
with the treatment reserved in case of legislations passed by Parliament or a
Legislature (Imperial Tobacco, above, at paras 58-60).
[41]
More recently, in Stemmler v Canada (Attorney
General), 2016 FC 1299, Justice Gascon held that:
[71] That said, I agree with the
Attorney General that, irrespective of what the ex gratia payment ended
up being in this case, the legal and policy instruments governing such payments
are not the subject of this judicial review. As stated by this Court in MacPhail,
the judicial review of the CDS Decision “does not and cannot encompass
questions as to whether the TB’s policy decision is fair or reasonable or
whether the policy’s impact upon the Applicant was just or unjust” (MacPhail
at para 10). The subject of judicial review is the reasonableness of the CDS’s
disposition of Cpl. Stemmler’s grievance. This Court does not have the power or
authority to decide whether the ex gratia payment of $25,000 was just or
unjust.
[42]
In this matter the Applicant has challenged the
eligibility criteria on the basis that they are premised on data that is
unreliable (he asserts that thalidomide was sold “off
label” prior to its initial distribution in Canada during clinical
trials and views the evidence of the initial distribution dates as suspect,
which would explain why he was impacted by the drug even though he was born
before the first clinical trials were conducted); that a Hansard debate
concerning a motion proposing that government effect a program to assist
thalidomide victims establishes that the object of Parliament was to provide
benefits to those victims, which object is improperly prescribed by eligibility
criteria requiring documentary proof which it is impossible for him to meet;
and, the 1991 criteria are dated and, given the passage of time, that expert
medical opinion on causation should be another form of acceptable documentary
proof.
[43]
However, the eligibility criteria comprise part
of a policy decision to effect the Program to provide support for thalidomide
victims. Whether the criteria are well-founded or not, whether they are fair
or reasonable or whether the policy’s impact upon the Applicant was just or
unjust is not the subject of this judicial review which is only concerned with
the decision of the Administrator. The Court does not have jurisdiction to review
the Program nor to reformulate or add criteria. In this regard, I need only
add that the Applicant’s reliance on the exceptions to the rule against hearsay
as well as his reliance on the Hansard debate is misplaced in this context.
[44]
When appearing before me the Applicant relied
heavily on Gehl. There the applicant submitted that evidence she presented
should have been accepted to establish that she was entitled to be registered
as an Indian under s 6(1)(f) of the Indian Act, RSC 1985, c I-5 (“Indian
Act”). The Indian Act stipulated that the Registrar was to
determine eligibility and the Registry developed a policy which set out the
five types of evidence of paternity that would be accepted. Justice Sharpe
of the Ontario Court of Appeal undertook a Charter values analysis and
concluded that when applying the policy to the applicant’s circumstances the
Registrar failed to take into account the equality-enhancing values and
remedial objectives underlying amendments to the Indian Act and, therefore,
its decision was unreasonable.
[45]
Justices Lauwers and Miller concurred but
decided the matter based on administrative law principles. They noted that the
applicant had provided circumstantial evidence capable of supporting the
inference that her paternal grandfather was, more likely than not, entitled to
registration (which, in turn, entitled her to registration). Those Justices
held that the Registrar erred by applying a categorical evidentiary rule that
worked in an exclusionary manner to deny registration and status to an entitled
individual. The demand for evidence of specific identity, when in the
circumstances only circumstantial evidence of Indian status of an ancestor
whose actual identity was not known or knowable, was unreasonable as it was at
odds with the purpose of s 6 of the Indian Act which is to provide for
the registration of persons who are entitled to registration. The denial was
based solely on the basis of the inability to satisfy an evidentiary demand not
mandated by the Indian Act, which was unobtainable due to the passage of
time and was, therefore, unreasonable.
[46]
It is easy to see the Applicant’s attraction to
this decision. There, as here, the applicant alleged that she could not, due
to the passage of time, provide the stipulated eligibility criteria. What
distinguishes it from this matter, however, is that here the Program, which
includes the 1991 EAP eligibility criteria, arose from a government policy
decision. It is not an administrative policy effected to achieve a legislative
purpose. Accordingly, the Court has no jurisdiction to intervene, even if, due
to the passage of time since 1991, the existing criteria in some circumstances
may exclude applicants with potentially valid claims.
[47]
The reasonableness of the eligibility criteria
is not a justifiable issue in these circumstances.
Issue 2: Was the
Administrator’s decision procedurally fair?
Applicant’s Position
[48]
The Applicant submits that he was denied
procedural fairness because he was deprived of the opportunity to be heard
fully. While unclear, the Applicant’s argument appears to be that the breach
arises from the Respondent’s failure to accept, in the circumstances of his
case, documentary proof that does not comply with the Program criteria and that
he had a reasonable expectation that it would do so.
[49]
The Applicant submits that an understanding of
the institutional and social context of the Program is germane to an analysis
of whether he was afforded fair treatment (Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 22 (“Baker”)).
He submits that the Hansard debates are admissible to demonstrate the
institutional context at play. As evidenced by these debates, Parliament
approved the motion for compensation having awareness of humanitarian and
regulatory failures and, while the Program was couched as ex gratia, the
debates also suggest that claimants would have a reasonable expectation that
they will be able to present their case fully and be heard fully. The
Applicant submits that notwithstanding that the payment program is ex gratia,
court supervision is available by way of mandamus or certiorari (Martineau
v Matsqui Institution, [1980] 1 S.C.R. 602, p 624). Further, that the
Administrator had the duty to act honestly and fairly lest their decision be
questioned by certiorari (Martineau at p 621). The Applicant
submits that in Baker, the duty of procedural fairness applies to
humanitarian and compassionate decisions and requires a meaningful opportunity
to present the various types of evidence relevant to the case and have it fully
and fairly considered (at para 32).
[50]
The Applicant submits that while it might be
said by the Respondent that the Court should not second guess the criteria, the
institutional and social context of this matter suggests that to take an overly
legalistic view of participatory rights deprives the Applicant of the ability
to be fully heard.
Respondent’s Position
[51]
The Respondent interprets the Applicant’s
procedural fairness arguments as follows: (1) that in general, the procedure
was “unfair” because his application was refused
and, (2) that the failure to grant an indefinite extension of time breached the
duty of fairness.
[52]
The Respondent submits that the Applicant
misunderstands Baker. While the Applicant asserts that the
Administrator’s decision concerned a “humanitarian and
compassionate” program and argues that Baker stands for the
proposition that “humanitarian and compassionate” administrative
decisions attract a high duty of procedural fairness, the reference to “humanitarian and compassionate” grounds in Baker
is to a legislative term applicable only in immigration cases. While Baker
is useful in determining the content of the duty of fairness in any
administrative decision, here a detailed Baker analysis is unnecessary
as none of the Administrator’s actions could be considered procedurally unfair
by any standard.
[53]
The Respondent submits that the Applicant had a
meaningful opportunity to present the various types of evidence relevant to
this case and have it fully and fairly considered (Baker at para 28). The
Minister determined the eligibility criteria, these were both available
publicly and drawn specifically to the attention of the Applicant in a letter
sent to him on November 27, 2015, an email sent to his counsel on January 21,
2016 and the Qualification Application Instructions. The Administrator
subsequently wrote to the Applicant and invited him to submit missing
documentary evidence on April 12, 2016. The Applicant’s counsel replied to the
request on April 26, 2016 conceding that the Applicant does not meet the
eligibility criteria and explaining why this was the case. Notwithstanding
this admission, the Administrator made another request for further information
on August 11, 2016. However, documentary evidence of maternal ingestion of
thalidomide was not provided by the Applicant and, accordingly, he was advised
that he was ineligible. The Respondent submits that, save for the refusal of
an extension of time for an indefinite period, it is difficult to see how it
could be found that the decision was procedurally unfair. The Applicant’s
written argument suggests that the procedural fairness complaint may relate to
his claim that the eligibility criteria are unreasonable, however, this cannot
constitute procedural unfairness and the reasonableness of the eligibility
criteria is not justiciable.
[54]
As to the refused indefinite extension of time
in order to obtain a medical opinion, this does not give rise to unfairness. The
Applicant explained that he was on a waiting list to see an orthopedic surgeon
and hoped the doctor could provide an opinion that his condition is
attributable to thalidomide. The Applicant did not know when he would see a
doctor, when he might be able to receive the opinion or if the doctor could
conclude that his condition was attributable to thalidomide. The Administrator
declined to grant an extension, correctly advising that possessing a medical
opinion identifying thalidomide as the likely origin of deformities does not
make one eligible for the Program. The sought after medical opinion would
therefore not be of assistance and granting an indefinite extension of time
would have been pointless. It cannot be said that failing to grant an
extension of time to potentially obtain irrelevant evidence is a denial of
procedural fairness.
Analysis
[55]
In Mercier-Néron, this Court held that “the duty to act fairly must be complied with even when the
government, responsible as here for implementing a program of ex gratia
payments established by order in council, derives its enabling power from the
royal prerogative. The performance of this function may also be reviewed by
the courts” (at para 14; also see Canadian Doctors at para 402). The
Respondent agrees that, in this case, there was such a duty but submits that it
was not breached.
[56]
The thrust of the Applicant’s argument is that
he had a right to be more fully heard given the social and institutional
context at play. That is, given the purpose of the Program and because through
no fault of his own it was impossible for him to provide the required
documentary proof. In my view, to the extent that the Applicant is asserting
that a denial of procedural fairness arises from the reasonableness or fairness
of the criteria themselves, this is not an issue of procedural fairness and, for
the reasons discussed above, the argument cannot succeed.
[57]
The Applicant relies on the Hansard debates in
the context of the duty of fairness, on the basis of his assertion that it establishes
Parliament’s broader intent to remedy a humanitarian failure. Thus, it serves
to demonstrate that claimants would have a reasonable expectation of being able
to fully present their case and to be heard. Again, this premise cannot
succeed.
[58]
I would first note that the Applicant has not
cited any case law in support of his view that Hansard debates inform the
content, or perhaps demonstrate the intended duty of fairness owed. It is true
that a Court can review Parliamentary debates as an aid to statutory
interpretation. In this regard the Applicant cites Parliamentary Debates in
Statutory Interpretation: A Question of Admissibility or Weight?, Beaulac,
McGill Law Journal, Vol 43, p 288, referencing R v Morgentaler, [1993] 3
SCR 463 at para 31, which states that Hansard evidence should be admitted as
relevant both to the background and the purpose of the legislation at issue,
provided that the Court remains mindful of the limited reliability and weight
of that evidence. However, no issue of statutory interpretation arises in this
matter. The Program criteria are not contained in a statutory instrument that
could be clarified by looking at the debates. Rather, as I have found above,
it was the Minister under the Crown’s prerogative powers who authorized the
Program and the criteria were part of a policy decision.
[59]
While I acknowledge the Applicant’s view that,
when implementing the Program, Parliament must not have meant the 1991 EAP
criteria to have an exclusionary effect as this, in his view, defeats the
purpose of the Program, this issue is really one of the reasonableness of the
criteria. Moreover, the Hansard debate, even if it were admissible, does not
establish a breach of procedural fairness based on a legitimate expectation
that the Applicant would be permitted to present evidence that does not meet the
criteria.
[60]
As to Baker, the Applicant does not
engage in a cogent analysis of the content of the duty of procedural fairness
owed to him based on the Supreme Court of Canada’s decision in that matter.
And, with respect to his reference to the Baker headnote stating that a
duty of procedural fairness applies to humanitarian and compassionate
decisions, I agree with the Respondent that the Applicant appears to fail to
appreciate that in Baker the applicant had applied for an exemption from
the requirement to apply for permanent residence from outside Canada which was
based upon “humanitarian and compassionate
considerations” as explicitly permitted by s 114(2) of the Immigration
Act, RSC 1985, c I-2 (now s 25(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27).
[61]
In any event, in light of the circumstances and given
the factual backdrop in this matter and the record, there is only one possible basis
upon which the Applicant can assert that he was denied procedural fairness
because of an alleged failure to permit him to fully present and have his case
heard. This concerns the Administrator’s refusal to provide an extension of
time until an anticipated medical opinion from an orthopedic specialist was
submitted. This became the procedure described in the Program was followed by
the Administrator and, as described by the Respondent, the Applicant and his
counsel were clearly notified of the criteria to be met and given opportunities
to respond. This is not disputed by the Applicant.
[62]
The background to the request to submit the
anticipated medical opinion begins with the January 19, 2016, correspondence
from counsel for the Applicant to the Administrator which attached correspondence
from a nurse practitioner, dated December 18, 2015, stating that she had
forwarded a referral to the WRHA [Winnipeg Regional Health Authority] Surgery
Program Orthopedic Hip & Knee Central Intake Office for an assessment and
that it was unknown how long that process would take. Also attached was a
January 7, 2016 letter from the WRHA, Orthopedic Waitlist Coordinator, WRHA
Surgery Program indicating that the WRHA Surgery Program Hip and Knee
Replacement Central Intake Office had received the Applicant’s Pre-Consultation
Questionnaire and had assigned the Applicant to Dr. Bohm for consultation and
assessment, that the average wait time was 4 months with an additional further
wait time of 7 months for surgery from the day it was determined surgery
was appropriate and agreed. Regarding those attachments, counsel stated that
he understood that the Applicant was in the process of referral to an
orthopedic specialist to confirm that his described condition/deformities “are linked to administration of thalidomide to his mother
and accordingly to Mr. Fortaine in vitro”. Noting his
understanding that finalization of settlements by the Administrator was
intended by May 31, 2016, counsel pointed out that the timing of the receipt of
the assessment was up to the medical professionals.
[63]
Various correspondence was exchanged and, by
letter dated April 26, 2016, counsel for the Applicant asked that the
Administrator confirm, on or before May 1, 2016, an extension of time to
provide an assessment report from a medical professional attesting to the
Applicant’s condition being ascribed to thalidomide, failing which the
Applicant would apply for injunctive relief.
[64]
On August 11, 2016, the Administrator emailed counsel
for the Applicant acknowledging receipt of his April 26, 2016 reply and requesting
a timeline for the extension of time to obtain additional documentary evidence
and stated that:
[I]n regard to the
request for an extension, if the extension is in regard to obtaining a medical
opinion as to the possible reason for your client’s injuries, unfortunately an
opinion does not satisfy any of the 1991 criteria. Please advise if you will
be presenting any further information in support of your client’s eligibility
as we are at a point in the review of your client’s file to render our decision.
[65]
The negative decision was rendered on August 23,
2016.
[66]
In response to a request by the Applicant’s
counsel that the decision be reconsidered, by email of September 12, 2016, the
Administrator asked when counsel anticipated receiving further information, the
type of this information, reiterated that a medical opinion as to the possible
origin of the Applicant’s injuries would not satisfy the criteria, and stated
that upon receipt of his reply a review would be conducted and he would be
advised whether an extension of time would be possible. Counsel for the
Applicant replied on September 12, 2016, referencing a number of avenues of
investigation apparently being pursued. The Applicant filed his application
for judicial review on September 14, 2016.
[67]
The relief sought in the Notice of Application
pertains solely to an expert medical opinion. Specifically, that the
Administrator be directed that an expert medical opinion that, on balance, the
Applicant’s injuries are consistent with first trimester maternal ingestion of
thalidomide, be accepted as valid proof for eligibility for the Program, and,
that the Administrator be enjoined to extend the date for a final decision on
his claim, pending the receipt of an “expert assessment”.
Although not relevant, I observe that the Applicant’s affidavit filed in
support of his application for judicial review, dated September 2, 2016, does
not indicate that the orthopedic assessment had been conducted or if a report
had been prepared.
[68]
In my view, the Applicant in this matter was
provided with a full and fair opportunity to be heard. And, in any event, the
Administrator clearly indicated that an expert opinion on whether the Applicant’s
condition could be attributed to thalidomide would not constitute the required
documentary proof as prescribed by the second of the 1991 EAP eligibility
criteria. Accordingly, the refusal to grant an indefinite extension of time
for the submission of the anticipated evidence does not amount to a breach of
procedural fairness.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The Application for judicial review is dismissed.
2.
There shall be no order as to costs.
“Cecily Y. Strickland”
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