



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Fahlman, 
          by his guardian ad litem Fiona Gow v. Community Living British Columbia 
          et al,







2007 
          BCCA 15



Date: 20070109





Docket: CA034239

Between:

Neil 
    Fahlman, An infant and a mentally incompetent person,

By 
    his guardian
ad litem
, Fiona Gow

Respondent

(
Petitioner
)

And

Community 
    Living British Columbia and

Her 
    Majesty the Queen in right of the

Province 
    of British Columbia, as represented by

The 
    Ministry of Children and Family Development

Appellants

(
Respondents
)












Before:


The 
          Honourable Madam Justice Rowles




The 
          Honourable Madam Justice Levine




The 
          Honourable Madam Justice Kirkpatrick






E. 
          E. Vanderburgh


Counsel for the Appellants




F. 
          Kelly


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver
,
British Columbia




15 December 2006




Place 
          and Date of Judgment:


Vancouver
,
British Columbia




9 January 2007













Written 
          Reasons by
:




The 
          Honourable Madam Justice Kirkpatrick




Concurred 
          in by:




The 
          Honourable Madam Justice Rowles

The 
          Honourable Madam Justice  Levine





Reasons for Judgment of the Honourable Madam 
    Justice Kirkpatrick:

[1]

The appellants (respondents in the Supreme Court), Community Living 
    British Columbia (CLBC) and the Ministry of Children and Family Development 
    (the Ministry), appeal from the order of the Supreme Court pronounced 12 
    June 2006 and entered 28 July 2006.  The order quashed CLBCs decision to 
    deny benefits to the respondent (petitioner in the Supreme Court) Neil Fahlman 
    and required CLBC to reconsider Mr. Fahlmans eligibility for benefits on 
    the basis of the criteria mandated by the
Community Living Authority 
    Act
, S.B.C. 2004, c. 60 (the 
Act
) as it currently 
    reads.

[2]

At the conclusion of the appellants submissions, we dismissed the 
    appeal with reasons to follow.  These are the reasons.

BACKGROUND

[3]

Mr. Fahlman, who was nineteen at the time of the Supreme Court proceedings, 
    was adopted by the respondent (petitioner in the Supreme Court) Fiona Gow 
    at the age of five weeks.  He has multiple difficulties.  Specifically, Mr. 
    Fahlman has been diagnosed with fetal alcohol syndrome, attention deficit 
    disorder and pervasive developmental disorder, which is a type of autism.

[4]

CLBC is a Crown corporation established pursuant to the
Act
.

Prior to 1 July 2005, the Ministry and Community Living Services 
    delivered services and support to adults with developmental disabilities living 
    in the community.  As of 1 July 2005, CLBC assumed responsibility for delivering 
    such support.



[5]

It appears that without adequate support, Mr. Fahlmans disabilities 
    create serious behavioural issues.  At age twelve, Mr. Fahlman qualified to 
    receive services from the Ministry.  At age fourteen, he began receiving services 
    from Community Living Services.

[6]

By the time Mr. Fahlman reached age fifteen, his emotional volatility, 
    impulsiveness, size, strength and weight rendered Ms. Gow and her husband 
    incapable of caring for him at their home.  He was placed in various foster 
    homes.  Nonetheless, Ms. Gow has remained active in attempting to stabilize 
    Mr. Fahlmans circumstances.

[7]

At the time of the Supreme Court proceedings, Mr. Fahlman was unemployed 
    but in a stable situation.  He was living in a small cabin in Shawnigan

Lake and seeing his 
    care provider daily.  Mr. Fahlman had been receiving disability benefits from 
    the provincial government since May 2005.  In addition, he was receiving funding 
    for seven hours of one-on-one assistance, which enabled him to maintain a 
    modicum of independence and stability.

[8]

In June 2005, CLBC commissioned a psychological assessment report to 
    determine Mr. Fahlmans eligibility for adult services once he turned nineteen 
    on 29 January 2006.  CLBCs eligibility criteria, as stated in its Provisional 
    Policy Manual, are as follows: onset before age eighteen; measured significant 
    limitations in two or more adaptive skill areas; and measured intellectual 
    functioning of approximately 70 or below.

[9]

In preparing her psychological assessment report dated 15 June 2005, 
    Dr. Barbara J. Burnside reviewed two reports prepared by Nathan Ory of the 
    Island Mental Health Support Team and she assessed Mr. Fahlmans cognitive 
    abilities.  She framed her mandate as follows:

Neil 
    was referred for assessment of his cognitive abilities in order to decide 
    upon his eligibility for services from the adult team of the MinistryandCommunity 
    Living Services.  At the time of this assessment Neil was a client of the 
    childrens team, but his case was reviewed as he approached age 19. ..
To 
    determine eligibility for services from the Adult Team, Neils IQ had to be 
    determined
.  [Emphasis added.]

[10]

Dr. Burnside concluded:

Although 
    Neils 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.

[11]

She noted that 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]

On 22 September 2005, the Victoria Eligibility Committee for CLBC Adult 
    Services discussed Mr. Fahlmans case.  The Eligibility Committee concluded 
    that Mr. Fahlman does not meet the criteria of intellectual functioning of 
    70 or below.  Accordingly, CLBC advised Ms. Gow that it would cease providing 
    services to Mr. Fahlman after he turned nineteen.  On 12 October 2005, Ms. 
    Gow, on Mr. Fahlmans behalf, requested a review of the decision.  By a letter 
    dated 24 October 2005, Dale Chandler, Quality Service Manager for the South 
    Vancouver Island Region of CLBC, affirmed the CLBCs decision.  The letter 
    stated in part:

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 
    Neils 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 Neils case however the variation 
    is so great than 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.  [Emphasis added.]

[13]

Ms. Gow made unsuccessful efforts to locate alternative support for 
    Mr. Fahlman.  Thereafter, she requested a review of Mr. Chandlers decision.  
    Carol Goozh, Vice President of Quality Services at CLBC, conducted a further 
    review of the decision to discontinue services.  She affirmed the decision 
    by a letter dated 16 December 2005.  The letter read in part as follows:

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 IQ of 79, he unfortunately does not meet the eligibility criteria 
    for adult CLBC services
.  
    [Emphasis added.]

[14]

In his affidavit sworn 3 February 2006, Mr. Chandler reconsidered and 
    confirmed Mr. Fahlmans ineligibility for benefits.

[15]

In the Supreme Court, Mr. Fahlman and Ms. Gow sought,
inter alia
: 
    an order quashing CLBCs 24 October 2005 decision to deny Mr. Fahlman adult 
    services when he turned nineteen; a declaration that the CLBCs decision to 
    deny benefits on the basis of an IQ criterion is
ultra vires
its statutory 
    authority; an order quashing Mr. Chandlers reconsideration dated 3 February 
    2006 confirming Mr. Fahlmans ineligibility; and an order remitting the complaint 
    back to CLBC to reconsider Mr. Fahlmans eligibility for adult services according 
    to proper criteria.

[16]

The learned chambers judge quashed CLBCs decision and Mr. Chandlers 
    reconsideration.  He also ordered a reconsideration of Mr. Fahlmans eligibility 
    for benefits on the basis of criteria mandated by the
Act

as 
    it currently reads.

Statutory Framework

[17]

At this point, it is helpful to set out the statutory scheme and the 
    relevant sections of the
Act
:

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

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



"child"
means 
    a person under 19 years of age;

"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;



(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

(c) meets other 
    prescribed criteria;



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.



Duties of authority

11
The 
    authority must do all of 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 and capital plan;

(d) comply with 
    the ministers 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.

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,

(c) encourage 
    shared responsibility among families, service providers and community resources,

(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 ministers approval under that subsection.



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;

(c) prescribing 
    additional duties of the authority under section 11;

(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.



[18]

As can be seen, s. 11 of the
Act
requires CLBC to provide 
    community living support.  Community living support includes support 
    and services to children and adults with developmental disabilities and support 
    and services to families to assist them in caring for a child or an adult 
    with a developmental disability.  Section 1 defines developmental disability 
    as

significantly impaired intellectual functioning 
    that

(a) manifests 
    before the age of 18 years,

(b) exists concurrently 
    with impaired adaptive functioning, and

(c) meets other prescribed criteria;



[19]

In contrast, CLBCs eligibility criteria, as stated in its Provisional 
    Policy Manual, are as follows: onset before age eighteen; measured significant 
    limitations in two or more adaptive skill areas; and measured intellectual 
    functioning of approximately 70 or below.

[20]

It is clear that the IQ criterion relied on by CLBC is not expressly 
    in the
Act
.

[21]

By virtue of s. 29, only the Lieutenant Governor in Council can pass 
    regulations prescribing criteria for the definition of developmental disability.  
    It is common ground that the
Community Living Authority Regulation
, 
    B.C. Reg. 231/2005 is silent on an IQ criterion and that no additional criteria 
    has been promulgated by the Lieutenant Governor in Council.

ISSUES

[22]

The appellants frame the issues on appeal as follows:

(a)        
    The learned chambers judge erred in his interpretation of the statutory definition 
    of developmental disability in the
Act
by ignoring the requirement 
    in the definition that applicants have significantly impaired intellectual 
    functioning.

(b)        
    The learned chambers judge erred in holding that CLBCs use of an IQ criterion 
    to interpret the phrase significantly impaired intellectual functioning 
    in the statutory definition of developmental disability in the
Act
was an unlawful sub-delegation of the power granted to the Lieutenant Governor 
    in Council to make regulations prescribing additional criteria for the definition 
    of developmental disability.

(c)        
    The learned chambers judge erred in holding that CLBCs use of an IQ criterion 
    to interpret the phrase significantly impaired intellectual functioning 
    as used in the statutory definition of developmental disability in the
Act
was an unlawful fettering of CLBCs discretion under the
Act
.

DISCUSSION

Standard of Review

[23]

I preface my consideration of the issues on appeal with the observation 
    that the appellants do not challenge the chambers judges conclusion that 
    the proper standard of review in this case is one of correctness.

[24]

In my opinion, the chambers judge properly stated at para. 34 of his 
    reasons that the decision of the Board attracts a correctness standard of 
    review where very little deference will be observed.

The Meaning of Significantly Impaired Intellectual 
    Functioning

[25]

I now turn to the appellants first ground of appeal.  CLBC and the 
    Ministry contend that the learned chambers judge erred in his interpretation 
    of the statutory definition of developmental disability in the
Act
by ignoring the requirement in the definition that applicants have significantly 
    impaired intellectual functioning.

[26]

The appellants submit that an error is manifest in para. 23 of the 
    chambers judges reasons, which reads in part: the determination of the 
    CLBC, although meeting the first two statutory criteria, has been denied benefits 
    on the basis of a third criteria [
sic
] of its own making.  They allege 
    that the chambers judge considered the requisite criteria for developmental 
    disability to consist only of the lettered sub-paragraphs in the statutory 
    definition.  The appellants argue that the chambers judges interpretation 
    of developmental disability erroneously omits an unlettered criterion; that 
    is, the existence of significantly impaired intellectual functioning.  Ultimately, 
    the appellants maintain that Mr. Fahlman does not have significantly impaired 
    intellectual functioning; as such, the board properly decided against his 
    eligibility for benefits.

[27]

The appellants contend that significantly impaired intellectual functioning, 
    which the
Act
omits to define, should be accorded its technical 
    and scientific meaning, which they claim can be found in internationally 
    accepted standards and authorities on mental retardation.  One such authority 
    is the American Psychiatric Associations
Diagnostic and Statistical Manual 
    of Mental Disorders
, 4
th
ed. (Washington, DC: American Psychiatric 
    Association, 2000) (DSM-IV), which provides diagnostic criteria for mental 
    retardation.  The DSM-IV defines significantly subaverage intellectual functioning 
    as an IQ of approximately 70 or below, with a measurement error of approximately 
    five points.  The appellants cite additional international standards that 
    employ criteria similar to those found in the DSM-IV.  They also cite extracts 
    from legislative debates to the effect that the definition of developmental 
    disability should correspond with the DSM-IV criteria.

[28]

In my respectful view, the chambers judge did err in finding only two 
    statutory criteria for developmental disability.  Whether an applicant has 
    significantly impaired intellectual functioning so as to be eligible for 
    adult CLBC services constitutes another statutory criterion.  However, it 
    is apparent from paras. 37 to 48 of the chambers judges reasons that he recognized 
    the relevance of the inquiry into significantly impaired intellectual functioning.

[29]

It remains to consider whether the IQ criterion falls under the rubric 
    of significantly impaired intellectual functioning.  I am not persuaded 
    that it does.  The
Act
does not support the construction of 
    the term as meaning only measured intellectual functioning of approximately 
    70 or below.  The appellants rely on the DSM-IV and other comparable texts 
    to justify their use of the IQ criterion in determining whether the applicant 
    is developmentally disabled.  However, it is apposite to note that the texts 
    define mental retardation, as opposed to developmental disability.  Further, 
    the phrase significantly
impaired
intellectual functioning appears 
    in none of the texts: the DSM-IV alludes to significantly
subaverage
intellectual functioning.  These factors limit the texts usefulness.

[30]

In addition, I am not prepared to take judicial notice of the DSM-IV 
    extracts.  Judicial notice is properly taken when facts are either (1) so 
    notorious or generally accepted as not to be the subject of debate among reasonable 
    persons; or (2) capable of immediate and accurate demonstration by resort 
    to readily accessible sources of indisputable accuracy:
R. v. Find
, 
    [2001] 1 S.C.R. 863, 2001 SCC 32 at para. 48, as cited in
R. v. Krymowski
, 
    [2005] 1 S.C.R. 101, 2005 SCC 7 at para. 22.

I do not consider 
    the texts to state unequivocally, the diagnostic criteria for developmental 
    disability.  The texts in the instant case are distinguishable from the historical 
    texts in
Law Society of British Columbia v. Gravelle
(2001), 
    154 B.C.A.C. 25,

[2001] 7 W.W.R. 15, which were accepted as 
    authoritative.

[31]

The DSM-IV and other texts can properly be characterized as expert 
    evidence, only to be entered through a qualified witness.  No such evidence 
    was adduced at the hearing in the Supreme Court.  In
Nesbitt 
    v. Nesbitt
, 2005 
    BCSC 1311, the judge preferred an experts application of DSM-IV criteria 
    over several lay interpretations.
In
Egli 
    (Committee of) v. Egli
(2003), 20 B.C.L.R. (4
th
) 386, 2003 
    BCSC 1716, the judge made the following remark at para. 26 with which I agree: 
    diagnostic criteria from the psychiatric manual DSM IV
contain 
    technical language that requires explanation.

[32]

The appellants essential argument on this point is circular.  They 
    submit that the court does not need expert evidence because the term significantly 
    impaired intellectual functioning has a technical meaning, to be ascertained 
    by reference to authoritative texts such as the DSM-IV.  However, at the same 
    time, the appellants urge this Court to take judicial notice of those texts.  
    This line of reasoning does not advance the appellants argument and is unpersuasive.

[33]

The appellants also rely on Hansard extracts to argue that the legislature 
    intended use of an IQ benchmark to ascertain significantly impaired intellectual 
    functioning.  However, it would be imprudent to equate the apparent intention 
    of certain individual legislators to the intention of the legislature as a 
    whole.  Moreover, in my view, the appellants interpretation of the Hansard 
    extracts is unsustainable: the extracts cannot be said to indicate the legislatures 
    endorsement of the IQ criterion.  The IQ figure employed by the DSM-IV is 
    referred to as a guideline and not a hard-and-fast number in all instances.  
    The respondents submit, and I accept, that the Hansard extracts more reasonably 
    support the interpretation that the legislature decided against imposing an 
    IQ criterion due to community concerns with a rigid guideline and the need 
    for flexibility.  The inclusion of an IQ or other rigid criterion was to be 
    the subject of ongoing consultation and review.  I note the following passages 
    from British Columbia, Legislative Assembly,
Hansard
, Vol. 13, No. 
    5 (26 March 2003) at 5654-55:

J. 
    MacPhail:
Let me ask the minister a question. Community 
    living services for children, whether they be adult children or children under 
    19. I understand that the services are delivered on the basis of an IQ test 
    and that the dividing line is 70. If you have an IQ of under 70, you get the 
    programs, and if you have an IQ above 70, you don't  whether you're a child 
    or an adult child...

Hon. 
    L. Reid:
At this stage in the discussion, it is the 
    international standard under the DSM-IV guideline, if you will. The reality 
    is that the guideline isn't hard and fast at 70. It's supposed to be 70 plus 
    or minus 5. That standard deviation is supposed to be considered in terms 
    of functional assessment. My colleague assures me that process is underway 
    in terms of people finding better ways to approach that.

The 
    member opposite is correct.
It is clearly not in people's best interests 
    to have a hard-and-fast number in all instances
.

J. 
    MacPhail:
That's good newsI met with one parent, for 
    instance. Her child is just an adult now, 19 or 20, and with autism. The child 
    is diagnosed autistic and is able to actually attend a post-secondary education 
    institution, but is every day having to learn how to take the bus, cannot 
    live independently and yet does not qualify for services because his IQ is 
     if I recall correctly  higher than 75 even. It's not much higher, but it's 
    higher than 75.
Because of this arbitrary cut-off point, as the minister 
    describes it, he is unable to maximize his independence
. It would be a 
    maximization of independence in a way that would actually save the state money 
    in the long run, because he will be able to get an education and probably 
    be able to get a job as well, but he needs community living support.



Hon. 
    G. Hogg:
Yes, we've been in many discussions with 
    the interim board of community living B.C. around the definitional issues. 
    Certainly, as the member appropriately points out,
there are a number of 
    parents who have concerns around the hard-and-fast guidelines
. We have 
    to have some standards by which we start to evaluate and provide services.

At 
    this stage, the best standard is the international standard through the diagnostic 
    and statistical manual  DSM-IV  of the American Psychiatric Association. 
    We have had discussions with them. They're well aware that
there is needed 
    to be some flexibility
...

They 
    have been having a number of consultationsThere have been a number of submissions 
    from parents about that  about the definition, about the flexibility.
They 
    are looking at ways they can provide the greatest range of services with the 
    greatest amount of flexibility that they can have
.



They 
    are still having further consultations and discussions around how they can 
    find an operational definition which is allowed to be based on the DSM-IV 
    standard as well as giving them some flexibility  flexibility that also allows 
    them to control or have a bar that makes some sense in terms of what the access 
    criteria to the services are.  [Emphasis added.]

[34]

Additionally, the appellants point to s. 5(1)(a)(i)(A) of the Regulation, 
    which requires the authority to provide, until 31 December 2006, for the delivery 
    of support and services that are the same as community living support to 
    a child who is diagnosed with Autism Spectrum Disorder.  Subsection 5(2) of 
    the Regulation then requires the authority to, before 31 December 2006, determine 
    whether the child has a developmental disability.  The appellants urge this 
    Court to make the following negative inference.  The Regulation explicitly 
    mandates the delivery of support to children with Autism Spectrum Disorder 
    (from which, I note, Mr. Fahlman suffers).  This mandate appears distinct 
    from the requirement to provide support for a child with a developmental 
    disability.  It follows, the appellants suggest, that all persons  children 
    or adults  with Autism Spectrum Disorder were not intended by the legislature 
    to fall under the category of having a developmental disability.  However, 
    I am not persuaded that such inference is warranted.

[35]

I emphasize that the legislature could easily have provided by regulation, 
    under s. 29 of the
Act
,

that only individuals 
    with an IQ of 70 or below are eligible for adult CLBC services.  It did not.  
    Therefore, IQ level cannot be determinative of the existence of significantly 
    impaired intellectual functioning.  In my view, the
Act

is 
    unambiguous in this respect.  In any event, it has been suggested that any 
    ambiguity in a benefit-conferring statute should be resolved in favour of 
    the claimant.  In the context of unemployment insurance benefits, the Supreme 
    Court of Canada remarked in
Canada (Attorney General) v. Abrahams
, [1983] 1 S.C.R. 2, 142 D.L.R. (3d) 1 at 
    para. 16 that since the overall purpose of the Act is to make benefits availableI 
    would favour a liberal interpretation of theprovisions.  I think any doubt 
    arising from the difficulties of the language should be resolved in favour 
    of the claimant.  In my view, the
Act
can fairly be characterized 
    as a benefit-conferring statute that is protective of vulnerable persons in 
    the community.  Subsection 12(2) provides insight on the
Act
s 
    general purposes: to assist adults with developmental disabilities to achieve 
    maximum independence and live full lives in their communities and to promote 
    equitable access to community living support.

[36]

Ultimately, I do not consider that on any reasonable interpretation 
    it can be said that the term significantly impaired intellectual functioning 
    imports the IQ criterion employed by CLBC.  Thus, although the learned chambers 
    judge may have failed to acknowledge directly the statutory criterion of significantly 
    impaired intellectual functioning, I see no basis for interfering with his 
    conclusion that the IQ threshold constitutes an unlegislated criterion that 
    CLBC improperly applied in determining Mr. Fahlmans eligibility.  I note 
    in passing that in declining Mr. Fahlmans application, CLBC essentially contravened 
    the Operational Directive 2001/02 (effective 18 April 2001) issued by the 
    Assistant Deputy Minister, which expressly stated that an IQ of approximately 
    70 is not to be used as the sole determinant of eligibility.  Although the 
    Provisional Policy Manual dated April 2005 specifying the current eligibility 
    criteria subsequently came into existence, the Operational Directive provides 
    some insight as to how the CLBC was to make eligibility determinations.

Unlawful Sub-delegation

[37]

With respect to the second ground of appeal, the appellants contend 
    that the chambers judge erred in holding that CLBCs use of an IQ criterion 
    to interpret the phrase significantly impaired intellectual functioning 
    in the statutory definition of developmental disability constituted an unlawful 
    sub-delegation of the power granted to the Lieutenant Governor in Council 
    to make regulations prescribing additional criteria for the definition of 
    developmental disability.  They submit that the chambers judges inattention 
    to significantly impaired intellectual functioning in defining developmental 
    disability led him to misconstrue CLBCs reliance on an IQ score as an attempt 
    to introduce unlegislated criteria into the definition.  The appellants maintain 
    that the term significantly impaired intellectual functioning within the 
    definition of developmental disability necessarily includes an IQ criterion.

[38]

Given my conclusion that the IQ measure does not fall under the criterion 
    for significantly impaired intellectual functioning, it follows that the 
    chambers judge did not err in construing CLBCs express use of IQ as part 
    of its eligibility criteria as an attempt to deny benefits on the basis of 
    a criterion of its own creation.  It is clear from CLBCs correspondences 
    to Ms. Gow that Mr. Fahlman was denied benefits predominantly on the basis 
    of his IQ score.  The chambers judge stated as follows at para. 24 of his 
    reasons:

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.

[39]

The chambers judge relied on the Supreme Court of Canada decisions 
    of
Canada (A.G.) v. Brent
, [1956] S.C.R. 318, 114 C.C.C. 296 
    [
Brent
] and
Brant Dairy Co. v. Ontario (Milk Commission)
, 
    [1973] S.C.R. 131, 30 D.L.R. (3d) 559 [
Brant Dairy
].  In
Brent
, 
    immigration legislation empowered the Governor in Council to make regulations 
    limiting or prohibiting a persons admission into Canada for reasons enumerated 
    in the statute.  The Governor in Council exercised its power by purporting 
    to enact a regulation that delegated to special inquiry officers, the discretion 
    to deny a person admission into Canada.  The regulation reflected the specifically 
    legislated reasons and it was drafted in comparable language as the regulation-empowering 
    section.  The court stated as follows at para. 4:

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, ever-changing 
    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
.  [Emphasis added.]

[40]

The court applied
Brent
in
Brant Dairy
, 
    which similarly involved an improper attempt to sub-delegate statutory regulation-making 
    power by converting it into a discretionary power to be exercised by sub-delegates.

[41]

Ultimately, I see no basis for interfering with the chambers judges 
    conclusion at para. 27 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
.

[42]

Accordingly, I would not accede to this ground of appeal.

Fettering of Discretion

[43]

In respect of the third ground of appeal, the appellants contend that 
    the chambers judge erred in holding that CLBCs use of an IQ criterion to 
    interpret the phrase significantly impaired intellectual functioning constituted 
    an unlawful fettering of CLBCs statutory discretion.  The crux of their argument 
    is that the
Act
does not confer discretion on CLBC to determine 
    eligibility for adult services.  The
Act
sets out specific criteria, 
    the precise application of which is CLBCs mandate.  According to the appellants, 
    a precondition of fettering of discretion is the existence of discretion, 
    which they claim CLBC did not enjoy.

[44]

The chambers judge concluded as follows at para. 28:

I 
    am of the view thatthe 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 N.F.'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 
    N.F.'s case.

[45]

The chambers judge also rejected the submission that the board justifiably 
    adopted the IQ policy as part of its duty under s. 11 of the
Act
to manage the delivery of community living supportservices.  The board 
    had claimed that this duty included enunciating guidelines to interpret the 
    undefined term significantly impaired intellectual functioning.

[46]

As Professor David J. Mullan explains in his text at 115-16, fettering 
    of discretion as a ground of review falls under the category of abuse of discretion.  
    The essential allegation is that the decision-maker failed to exercise its 
    discretionary powers
genuinely
in an individual case; rather, it rendered 
    a decision on the basis of pre-existing policy.  Judicial tolerance for the 
    adoption of guidelines has not extended to the establishment of formal rules 
    to govern in particular cases.  A specific statutory power is a prerequisite 
    to promulgating such rules.

[47]

Further, Professor Mullan observes how courts have admonished against 
    informal policies and guidelines becoming invariable rules applied automatically 
    in every case.  Individual matters warrant individual attention.  Accordingly, 
    a statutory authoritys discretion should not be so fettered as to preclude 
    individualized consideration of particular cases.

[48]

In
Ainsley Financial Corporation v. Ontario Securities Commission
(1995), 21 O.R. (3d) 104, 77 O.A.C. 155 (C.A.), the court declared
ultra 
    vires
, a policy statement of the Commission.  The court found that the 
    policy statement did not merely contain informal guidelines that facilitated 
    the Commissions regulatory functions.  Rather, the Commission had instituted 
    rules that appeared mandatory due to the threat of sanctions.  The court at 
    para. 14, citing
Pezim v. British Columbia (Superintendent of Brokers)
, 
    [1994] 2 S.C.R. 557, 168 N.R. 321 at para. 79,

held that the 
    Commission had no statutory authority to issue
de facto
laws disguised 
    as guidelines.

[49]

Moreover, the respondents cite
Maple Lodge Farms v. Canada
, 
    [1981] 1 F.C. 500, 42 N.R. 312 at para. 29 (F.C.A.), affd [1982] 2 S.C.R. 
    2, 44 N.R. 354 for the proposition that

[t]he 
    Minister may validly and properly indicate the kind of considerations by which 
    he will be guided as a general rule in the exercise of his discretionbut 
    he cannot fetter his discretion by treating the guidelines as binding upon 
    him and excluding other valid or relevant reasons for the exercise of his 
    discretion

[50]

In the case at bar, I see no sound basis for interfering with the chambers 
    judges conclusion that CLBC fettered its discretion.  First, I prefer the 
    respondents characterization of CLBCs mandate.  In my view, the
Act
clearly grants to CLBC discretion in determining eligibility for adult services.  
    As is evident from para. 37 of the chambers judges reasons, CLBC recognized 
    in Supreme Court its wide ranging discretion with respect to the provision 
    of the benefits it is authorized to administer.  Whether an applicant has 
    significantly impaired intellectual functioning so as to have a developmental 
    disability and therefore warrant community living support appears to be 
    a discretionary decision.  Application of the statutory criteria does not 
    necessarily yield an incontrovertible result.  CLBCs duty to satisfy itself 
    as to the presence of a qualifying impairment is to be exercised on the facts 
    of each case.

[51]

Second, in adopting a policy interpreting significantly impaired intellectual 
    functioning as requiring a below-70 IQ, CLBC can fairly be said to have fettered 
    its discretion.  The respondents cite the Supreme Court decision of
Lewis 
    v. B.C. (Superintendent of Motor Vehicles)
(1979), 18 B.C.L.R. 305, 
    108 D.L.R. (3d) 525 (S.C.) [
Lewis
], which the Federal Court 
    referred to in
Apotex Inc. v. Canada (Attorney General)
(1993), 
    59 F.T.R. 85 at para. 78 (T.D.).

[52]

In
Lewis
, 
    motor vehicle legislated provided
that upon being satisfied as to
the 
    fitness and ability of the applicant to drive and operate motor-vehicles of 
    the relevant category", the superintendent shall issue a licence.  The 
    judge noted at paras. 3 and 10 that

the superintendent cannot, of course, lay down specific 
    requirements and say that those who meet these criteria will receive a licence 
    and those who fail to meet any one of them will be refused. That would be 
    to enact regulations, which the superintendent has not the authority to do, 
    and to abdicate the judgmental role which is given to him by the Act.



I am satisfied that in this case the responsible officer 
    refused the licence solely by application of an inflexible rule and without 
    regard to the
actual fitness or ability of the applicant 
    to drive a vehicle of the type in question. The limitation which the officer 
    placed on the scope of appeal makes this very plain.


[53]

The judge at para. 10 made the following remarks with which I agree:

Those performing the superintendent's duties quite understandably 
    desire to avoid consideration of the merits of individual cases and the controversy 
    which arises when applicants are turned down on the basis of judgment. They 
    prefer the strict application of rules to which reference can be made. Had 
    the legislature desired that licences be granted or refused on the basis of 
    compliance with particular standards, it would have authorized such standards 
    to be established by regulation. Instead, it has determined that the decision 
    should be based on "fitness" and "ability", and made the 
    superintendent and his delegates judges of these qualities in individual applicants.

[54]

This Court considered a similar question in
Lloyd v.
British Columbia (Superintendent of Motor Vehicles)
, [1971] 3 W.W.R. 619, 20 D.L.R. (3d) 181 
    (B.C.C.A.).  In that case, the court found that the superintendent fettered 
    his discretion by adopting a blanket policy of automatically suspending the 
    licence of any person convicted of impaired driving.  This policy prevented 
    the superintendent from undertaking the statutorily-mandated inquiry into 
    the facts, circumstances and merits of each case.

[55]

In the instant case, had the legislature intended IQ to be partially 
    determinative of significantly impaired intellectual functioning and, therefore, 
    developmental disability, it could have invoked s. 29 of the
Act
.  
    Namely, the Lieutenant Governor in Council could have specifically prescribed 
    the IQ threshold as an additional criterion for the purpose of paragraph 
    (c) of the definition of developmental disability in section 1.  Instead, 
    the legislature seemed reticent to impose rigid rules.  Until the legislature 
    decides to impose such rules, the Act as it currently reads confers discretion 
    on CLBC to determine whether an applicant has significantly impaired intellectual 
    functioning so as to be developmentally disabled and thus eligible for community 
    living support.  In exercising its discretion, CLBC is to consider fully 
    the facts, circumstances and merits of each application.  The IQ policy precludes 
    such consideration and application thereof gives rise to a fettering of discretion.

[56]

Accordingly, I would not accede to this ground of appeal.

CONCLUSION



[57]

For the foregoing reasons, I would dismiss the appeal.  In so doing, 
    I dismiss the appellants application to adduce fresh evidence.  In applying 
    the test articulated in
Palmer v. The Queen
, [1980] 1 S.C.R. 
    759 at 775-76, 50 C.C.C. (2d) 193, I emphasize that the proposed evidence 
    was entirely within the appellants capacity to obtain prior to the hearing 
    of the petition.  The court in
Palmer
established that evidence 
    should generally not be admitted if, by due diligence, it could have been 
    adduced at trial.  This general principle is strictly applied in civil cases:  
    See:
Spoor v. Nicholls
(2001), 90 B.C.L.R. (3d) 88, 2001 BCCA 
    426 at para. 16.

[58]

Ultimately, I uphold the chambers judges order quashing CLBCs decision 
    and the reconsideration.  I also uphold his order for reconsideration of Mr. 
    Fahlmans eligibility for benefits on the basis of the criteria mandated by 
    the Act as it currently reads.

The Honourable 
    Madam Justice Kirkpatrick



I agree:





The Honourable Madam Justice Rowles





I agree:





The Honourable Madam Justice Levine






