Administrative law – Government – Funding of programs – Judicial review – Compliance with legislation – Procedural requirements and fairness – Failure to provide reasons
Nieberg (Litigation guardian of) v. Ontario (Minister of Community Family and Children’s Services),  O.J. No. 1135, Ontario Superior Court of Justice, March 18, 2004, Benotto, Dunn and McCombs JJ.
Jared Clough and Ryan Nieberg were children with severe disabilities including Autism Spectrum Disorder. Their parents applied for certain funding from the Ministry for services under the Child and Family Services Act. Ms. Clough had prepared a detailed proposal for assistance seeking funding of $119,963. The Ministry approved funding in the amount of $11,072. Mr. Nieberg put forward a proposal for $91,680 for services for his child. The Ministry approved funding in the amount of $11,280. This funding was available to the children under the Special Services At Home program and the Assistance for Children with Severe Disabilities program. Both Ms. Clough and Mr. Nieberg were led to believe by the Ministry officials that their initial request for funding would be approved. The denial of their request came through similar letters which provided a summary response without reasons or an appeal process. Ms. Clough and Mr. Nieberg sought judicial review of the decisions.
On judicial review, the Ministry took the position that the decision at issue was not a statutory decision but rather a straightforward funding decision and not subject to judicial review. In support of this, the Ministry noted that the Child and Family Services Act provided, in section 7, that the Minister may provide services and may make payments for those services out of legislative appropriations. The court held that section 7 of the Act provided power to disburse money and, within a legislative framework, gave the Minister these powers. The power to disburse money was not a policy decision about whether to fund a particular project and involved a decision with respect to implementing a decision already made to fund services. The process of implementing the decision was reviewable.
The court then reviewed the issue of procedural fairness and noted that both the statute and the common law mandate procedural fairness in the statutory decision process. In this case, the families had provided detailed proposals. Their legitimate expectations included some objective criteria in the decision-making process. Instead, the families were simply told what they were being awarded and there was no apparent criteria or procedure. The court found that the process fell short of the procedural fairness mandated by law. In particular, the applicants were never informed of the criteria for funding, they were given no information about the guidelines for funding, they were given no opportunity to address any objections and no explanation was ever provided to the families. Based upon these considerations, the court found that the duty of procedural fairness was breached and that the decisions of the Minister must be quashed. The court directed that the proposals be referred back to the Ministry to be reconsidered in light of the factors outlined by the court with respect to procedural fairness.
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