Administrative law – Administrative decisions – Community Living authority – Legislation – Validity – Ultra vires – Unlawful delegation of power – Judicial review – Compliance with legislation
N.F. (Guardian Ad Litem of) v. Community Living B.C.,  B.C.J. No. 1331, British Columbia Supreme Court, June 12, 2006, Chamberlist J.
The Petitioner was 19 years of age and had multiple developmental and intellectual disabilities. From the age of 12, the Petitioner had been receiving support and services from the Respondent or another associated body. In June 2005, the Respondent commissioned a psychological report to determine the Petitioner’s eligibility for adult services once he turned 19 years of age. The report identified health and safety issues that arose if the Petitioner’s supports were removed. The Petitioner’s IQ was measured at 79, which exceeded an IQ criteria set by the Respondent. The Respondent decided that it would not continue to provide services to the Applicant after his 19th birthday. On an administrative review, the Manager of the Respondent upheld that decision and noted in his reasons that the Applicant had not met the IQ criteria.
A further review of that decision was conducted by the Vice President of Quality Services of the Respondent. The decision was again upheld, with the Vice President again noting the Applicant’s failure to meet the IQ criteria.
The Court, on judicial review, noted that the IQ criteria relied upon by the Respondent was not found in the Community Living Authority Act. Where legislation authorises a delegate to make regulations, then the delegate must make them and any delegation of that statutory authority will be ultra vires. The delegate cannot sub-delegate the lawmaking power without statutory authority to do so. In this case, the Lieutenant Governor had chosen not to promulgate a regulation to create the IQ criterion as a statutory consideration to be applied by the Respondent. Nevertheless, the Respondent had adopted a policy that amounted to binding regulation, which appeared to state that only individuals with an IQ below 70 to 75 would be eligible for the services it provides in accordance with the statutory scheme. The Respondent’s action was ultra vires on the basis that it was an unlawful delegation of the power to make regulations. Moreover, the Respondent had unlawfully fettered it own discretion by adopting the unlegislated IQ policy and then refusing to consider other factors that were relevant.
The general purpose of the legislation was to determine eligibility for services for children and adults with developmental disabilities and to provide that service either directly or through contracting with agencies. The eligibility provision was concerned with statutory eligibility criteria for determining whether an adult seeking services for developmental disability is entitled to services that are to be provided by the Respondent. While the Respondent had some expertise on factual questions arising within its jurisdiction, it was still required to apply the proper legislative criteria. Here, it had applied its own criteria that were contrary to the provisions of the statute.
In the result, the Court quashed the decision of the Respondent and ordered a reconsideration of the Petitioner’s eligibility for benefits, that reconsideration being made only on the basis of criteria mandated by the statute.
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