Administrative law – School boards – Powers and duties – Discretion of delegated authority – Special programs for autistic children – Funding – Guidelines – Judicial review – Administrative decisions – Standard of review – Reasonableness simpliciter – Remedies – Statutory provisions
Dassonville-Trudel (Guardian ad litem of) v. Halifax Regional School Board,  N.S.J. No. 241, Nova Scotia Court of Appeal, June 16, 2004, Bateman, Freeman and Cromwell JJ.A.
The mother of an autistic child challenged the Department of Community Services’ decisions not to fund certain expenses under the “In-Home Treatment Program”, as well as the family’s exclusion from the Program because their income exceeded the maximum prescribed by the Program Guidelines.
The Appellant’s daughter has a severe form of autistic spectrum disorder. Due to her autism, she has high needs and borders on the unmanageable requiring constant supervision. The family had been receiving financial assistance from the Defendant, but this funding was inadequate from the perspective of the parents. The Plaintiff applied to the Supreme Court for orders in the nature of certiorari and mandamus in relation to the decisions to deny additional financial support, and was later expanded to challenge the Defendant’s decision to terminate funding, which was made pursuant to Guidelines regarding family income. The trial judge dismissed all applications as he was satisfied that all of the challenged decisions met the standard of reasonableness simpliciter.
The Court of Appeal held that its role was to determine whether the trial judge chose and properly applied the correct standard of review and, in the event he used the wrong standard, to assess the Defendant’s decisions in light of the correct standard. The court noted that the denial of additional funding under the In-Home Support Program and the termination of all funding under the Program based upon financial eligibility were administrative decisions involving a non-adjudicative exercise of discretion.
The relevant factors with respect to the standard of review, namely the presence or absence of a privative clause or statutory right of appeal, the expertise of the tribunal relative to that of the reviewing court on the issue in question, the purpose of the legislation, and the nature of the question, whether of law, fact, or mixed law and fact. The court held that while a “strong case” could be made in favour of reviewing decisions under the relevant sections of the Children and Family Services Act on a standard of patent unreasonableness, the Defendant in this case supported the judge’s application of a reasonableness simpliciter standard. The court therefore sought to resolve the appeal by applying that standard.
The trial judge found that the Defendant’s decision not to fund the additional services sought, namely a security system and intensive toilet-training, was reasonable because the guidelines did not provide for funding for those items. He also found that the decision to terminate their participation in the Program was reasonable because the family’s income exceeded the maximum prescribed by the guidelines.
The Court of Appeal noted that while the adoption of guidelines and policies to assist with the exercise of delegated authority was not per se unlawful, a decision-maker who blindly follows guidelines or policies may fetter his or her discretion. The In-Home Support Program Guidelines, insofar as they imposed a family income cutoff, if rigidly applied, failed to take into account the individual circumstances of families in need. In this case, there was a failure to recognize that the application of the Guidelines did not exhaust the statutory discretion and the resulting failure to exercise that discretion in light of the actual needs and circumstances of this family.
While the Defendant was entitled to exercise its discretion on relevant considerations when denying funding for additional services, it was a reasonable inference from the correspondence that the Department did not exercise any discretion. Instead, it treated the Guidelines as determinative.
The court held that the trial judge erred in concluding that the Defendant’s refusal to provide funds for additional services was reasonable. Similarly, the court held that the judge erred in concluding that the disqualification of the family from financial assistance on the basis of their joint income for the year was reasonable.
The appeal was allowed, and the matters were remitted to the Defendant for reconsideration within its statutory mandate.
To stay current with the new case law and emerging legal issues in this area, subscribe here.