Richard v. Canada (Attorney General)

Richard v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2024-04-29
Neutral citation
2024 FC 657
File numbers
T-1321-21
Decision Content
Date: 20240429
Docket: T-1321-21
Citation: 2024 FC 657
[ENGLISH TRANSLATION]
Ottawa, Ontario, April 29, 2024
PRESENT: The Honourable Mr. Justice Pamel
BETWEEN:
PAUL RICHARD
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview
[1] Thalidomide is a medication that was prescribed and given to pregnant women in Canada in the 1950s and 1960s to treat pregnancy-induced nausea. There were serious reasons to believe that this medication caused significant birth defects when used during the first trimester of pregnancy. Near the end of 1961, the two pharmaceutical companies that were producing this medication launched a warning campaign through letters sent to physicians indicating that thalidomide should not be administered to pregnant women. This medication was withdrawn from the Canadian market at the request of the Department of Health in early March 1962. However, it would seem that the damage was already done: many children were born with birth defects in Canada.
[2] Despite the many efforts made by the Department of Health in 1962 to inform the medical community of the effects of this medication and to ensure the recall and destruction of the inventory of thalidomide in circulation across the country, the Department of Health has no conclusive information about the quantity of thalidomide that was not returned to the pharmaceutical companies or destroyed following these efforts, or about the shelf life of the thalidomide that was available on the market at the time; modern thalidomide has a shelf life of five years. Still today, the main obstacle to identifying the victims of thalidomide is the lack of conclusive medical testing to establish that a person’s birth defects were caused by thalidomide. In fact, 3% to 5% of Canadians are born with birth defects although it is now practically impossible that pregnant women or women likely to become pregnant have taken thalidomide.
[3] As early as 1963, the Canadian government demonstrated that supporting thalidomide survivors was important by providing funding for research, creating specialized rehabilitation centres and provincial assistance programs, providing assistance to families who were seeking settlements with the pharmaceutical companies, and creating a registry of children born in Canada who were affected by thalidomide. This government registry was maintained from 1963 to 1974 and identified 74 living children affected by thalidomide.
[4] The applicant, Paul Richard, was born on March 20, 1969, in Miramichi, New Brunswick, with numerous birth defects. Among other things, Mr. Richard has phocomelia, a condition characterized by significant atrophy of the upper or lower limbs; in Mr. Richard’s case, his two upper limbs are affected. Mr. Richard’s malformations and other after-effects include:
(a)a serious malformation of the right arm and the right hand that required three operations from birth to age 7;
(b)a malformation of the left arm that required an operation at age 24;
(c)limited function in the fingers of the right hand and no function in the right thumb;
(d)reduced mobility in the left elbow and wrist;
(e)Berger’s disease (IgA nephropathy) discovered in recent years that caused a 70% reduction in the normal capacity of his kidney function.
[5] Mr. Richard’s malformations and other after-effects correspond to an in utero exposure to thalidomide, and a genetic analysis did not reveal any genetic mutation that could explain these malformations. Although there is no medical evidence that his mother was prescribed thalidomide during her pregnancy—all the medical records at the time of Mr. Richard’s birth were destroyed or have disappeared—Mr. Richard states, with his mother’s supporting affidavit, that she took the thalidomide her physician prescribed to her in the beginning of her pregnancy in 1968, and that no other person in his extended family was born with birth defects.
[6] Moreover, three government programs were then created in 1991, 2015 and 2019 to offer financial support to thalidomide survivors.
[7] In 1990, the Governor in Council enacted the HIV-infected persons and Thalidomide Victims Assistance Order, PC 1990-0872. The Department of Health implemented the 1991 Extraordinary Assistance Plan [1991 Assistance Plan] to oversee the granting of payments. In order to be eligible for payments under the 1991 Assistance Plan, thalidomide victims had to show, among other things, that their mothers had been treated in Canada and had taken thalidomide during the first trimester of pregnancy. To meet this requirement, the 1991 Assistance Plan established three criteria, namely, that the applicant (1) provide verifiable information regarding an out-of-court settlement with a pharmaceutical company; (2) provide documentary evidence (i.e., medical or pharmaceutical record) that the applicant’s mother took thalidomide in Canada during the first trimester of her pregnancy; or (3) be included on the list drawn from the government registry of thalidomide victims. In all, the 1991 Assistance Plan accepted only 109 applications. The oldest survivor in Canada confirmed by the 1991 Assistance Plan was born in June 1960, and the youngest at the end of 1964.
[8] Mr. Richard did not submit an application under the 1991 Assistance Plan. In fact, Mr. Richard does not appear on the government registry of thalidomide victims and never reached an out-of-court settlement agreement with a pharmaceutical company with regard to his health condition; nothing in the record explains why. However, from my understanding of the parties, I must state that the individuals concerned did not always register themselves in the government registry, but that it was the federal government, in collaboration with hospitals and medical professionals, that managed the registry until 1974.
[9] In 2015, a departmental policy established an ex gratia payment program for thalidomide survivors, called the Thalidomide Survivors Contribution Program [2015 Program], that incorporated by reference the three eligibility criteria of the 1991 Assistance Plan. A third party administrator assessed the eligibility of the applicants to this program. Mr. Richard submitted an application under the 2015 Program, which was found to be ineligible by the third party administrator. As I indicated above, Mr. Richard did not enter into an out-of-court settlement with a pharmaceutical company, his name does not appear in the government registry and he does not have documentary evidence (medical records or other) found to be admissible by the third party administrator to show that his mother took thalidomide during the first trimester of her pregnancy. Of the 193 new applications submitted under the 2015 Program (people who had not received payments under the 1991 Assistance Plan), 25 new survivors were approved, with the oldest born in July 1960, and the youngest in May 1964.
[10] Shortly after the announcement of the 2015 Program, several people raised concerns about some aspects of the program, in particular, the second criterion of the 1991 Assistance Plan, to provide sufficient documentary evidence more than 50 years after the events. In fact, in 2018, the Court found the application of this second criterion to be unreasonable in Briand v Canada (Attorney General), 2018 FC 279 [Briand]; Justice Annis found that the application of this criterion, in accordance with the directives and policies developed by the program’s administrator, which required, as acceptable medical proof, the mother’s medical records or an affidavit by a medical professional with direct knowledge of the event, was unreasonable. In particular, Justice Annis stated that “the policies … are unreasonable to the point of being egregious, aside from interpreting them to admit circumstantial evidence that is able to prove the likelihood that the applicant’s malformations resulted from maternal use of thalidomide during the first trimester of pregnancy …”. There is certainly a distinction to be made with Briand, which did not address the reasonableness of an eligibility criterion (as in the present case) but the interpretation of a criterion by the third party administrator and its application to the requests submitted by the applicants; however, I am of the opinion that it is an inconsequential distinction.
[11] Moreover, the individuals who were denied by the 2015 Program because of the nature of the documentary evidence required to be eligible initiated a class action against the government in 2016; the Federal Court of Appeal certified the class action in November 2018 (Wenham v Canada (Attorney General), 2018 FCA 199 [Wenham]. The Court approved the class action settlement in May 2020 (Wenham v Canada (Attorney General), 2020 FC 588).
[12] At any rate, in response to these concerns, in February 2018, the government announced that the 2015 Program would be expanded; it would extend eligibility to thalidomide survivors who had been excluded from the previous programs. In January 2019, the Department of Health announced the creation of the Canadian Thalidomide Survivors Support Program [CTSSP], which replaced the 2015 Program; the CTSSP was established by the Canadian Thalidomide Survivors Support Program Order, PC 2019-0271 [2019 Order], made by the Governor in Council on the Minister of Health’s recommendation. A person is eligible for the program if he or she meets one of the three conditions stated in the 2019 Order:
(a)he or she was found to be eligible under the 1991 Assistance Plan or the 2015 Program,
(b)he or she is listed on the government registry of thalidomide victims, or
(c)he or she is determined by the third party administrator to be eligible.
A third party administrator determines whether the third condition stated in the 2019 Order has been met. Mr. Richard was not eligible for the 1991 Assistance Plan or the 2015 Program, and his name is not in the government registry of thalidomide victims; therefore, it is the third condition of the CTSSP that is relevant in this case.
[13] The two parties acknowledge that, contrary to the 1991 Assistance Plan and the 2015 Program, which most often required documentary proof, eligibility for the CTSSP was determined on the basis of the probability that a person’s birth defects were the result of maternal use of thalidomide in the first trimester of pregnancy. Therefore, for the third party administrator to find that a person is eligible under the third condition of the CTSSP, the 2019 Order set out a three-step process to determine eligibility:
1. preliminary assessment by the third party administrator that it is likely that the person’s congenital malformations are the result of maternal ingestion of thalidomide in the first trimester of pregnancy;
2. use of a diagnostic algorithm for thalidomide embryopathy;
3. recommendation of a multi-disciplinary committee of medical and legal experts.
[14] With regard to the first step of the eligibility process, the preliminary assessment, under paragraph 3(5)(a) of the 2019 Order, Mr. Richard must show that he meets each of the following criteria:
(i) his date of birth falls within the period beginning on December 3, 1957, and ending on December 3, 1967 [date of birth criterion];
(ii) his date of birth or any other information available is consistent with maternal ingestion of thalidomide in the first trimester of pregnancy; and
(iii) the nature of the congenital malformations is consistent with known characteristics linked to thalidomide.
[15] According to the 2019 Order, each criterion must be considered to show the probability that an applicant’s congenital malformations are indeed due to the maternal ingestion of thalidomide in the first trimester of pregnancy. In this case, it is the date of birth criterion, a temporal criterion under subparagraph 3(5)(a)(i) of the 2019 Order, that is relevant. Mr. Richard was found to be ineligible for the CTSSP because he was born in 1969. The third party administrator’s refusal letter indicates that Mr. Richard met the other two preliminary assessment criteria, namely, that his date of birth or any other information available is consistent with maternal ingestion of thalidomide in the first trimester of pregnancy and the nature of the congenital malformations is consistent with known characteristics linked to thalidomide. Mr. Richard’s application was therefore rejected at the first step of the preliminary assessment and was not examined at the second and third steps to establish a link between his congenital malformations and the maternal ingestion of thalidomide, solely because he was born in 1969.
II. Nature of the application, issues and standard of review
[16] Mr. Richard has filed an application for judicial review under section 18.1 of the Federal Courts Rules, RSC 1985, c F-7, and seeks to have the date of birth criterion under the 2019 Order set aside on the ground that it is unreasonable. He states that the temporal criterion was established without any justification for the dates chosen. The Attorney General of Canada [AGC] states that this criterion is reasonable but, at any rate, the reasonableness of the date of birth criterion is not a justiciable issue. The two parties confirmed during the hearing that they are not seeking costs, regardless of the outcome of the application.
[17] The parties agree that if the issue of the date of birth criterion is justiciable, the applicable standard of review would be reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 88–90; Portnov v Canada (Attorney General), 2021 FCA 171 [Portnov] at para 44). However, the AGC states that the Court must consider the broad discretion the Governor in Council had to adopt the criteria he considered appropriate, and that the Court must not review the wisdom or effectiveness of the choice of criteria, in this case, the dates of the eligibility period in the first step of the preliminary assessment, or question whether the Governor General should have stated the criteria differently.
[18] The debate over the method to use when considering a challenge to the validity of a regulation, a statutory instrument or a decision made under the prerogative is far from over (International Air Transport Association v Canadian Transportation Agency, 2022 FCA 211 [IATA] at paras 187–91).
[19] In Innovative Medicines Canada v Canada (Attorney General), 2022 FCA 210 [Innovative Medicines] at paragraph 26, the Federal Court of Appeal clearly stated that when assessing a challenge to the validity of an administrative decision made under the royal prerogative, whether through legislative or regulatory means or by order, Portnov requires us to follow the methodology in Vavilov, not the “hyperdeferential” approach (Paul Daly, “Regulations and Reasonableness Review”, (January 29, 2021), online (blog): <www.administrativelawmatters.com/blog/2021/01/29/regulations-and-reasonableness-review>) in Katz Group Canada Inc. v Ontario (Health and Long-Term Care), 2013 SCC 64 [Katz], where the challenger of a regulation can only overcome the presumption of validity if the regulation is “‘irrelevant’, ‘extraneous’ or ‘completely unrelated’ to the statutory purpose”, if there was a loss of “jurisdiction” through some rare and significant errors, including cases where there was a “jurisdictional defect” of exceeding an authority (Katz at paras 24, 25 and 28; Thorne’s Hardware Ltd v The Queen, [1983] 1 SCR 106, 1983 CanLII 20 (SCC) [Thorne’s Hardware] at p 111). This method of analysis has become “an artefact from a time long since passed” and, other than very few exceptions, for example bad faith, it has been replaced by Vavilov (Portnov at para 22; Innovative Medicines at para 59).
[20] However, I note that a recent Supreme Court of Canada decision on this issue leads me to think that in order to succeed in a claim that a regulation is ultra vires, it may be necessary to rely on the vires principle and show that the regulation is invalid, since regulations benefit from a presumption of validity (Canadian Council for Refugees v Canada (Citizenship and Immigration), 2023 SCC 17 [Canadian Council for Refugees] at para 54, referring to Katz at para 25). However, that decision does not mention Innovative Medicines or Portnov or IATA, and the reference to the presumption of validity of regulations and Katz seems to have been made in response to a somewhat muted argument by the appellants on the issue, without much discussion. It is also possible that the Supreme Court did not think Canadian Council for Refugees was the right decision to address the issue.
[21] For the purposes of this case, the current consensus of the country’s courts and legal experts, while still uncertain, seems to align with the Federal Court of Appeal’s position in Portnov. I will therefore apply the Vavilov principles in my analysis of the issue at bar. Moreover, to be clear, Mr. Richard is not alleging that the 2019 Order is ultra vires because of a legal restriction or because the Governor in Council did not have the jurisdiction to issue it, but simply that the date of birth criterion in the 2019 Order was unreasonable.
III. Analysis
A. Preliminary issue: Is Cindy Moriarty’s affidavit admissible?
[22] In response to the request for documents under section 317 of the Rules, only the 2019 Order was transmitted, considering that all the other documents were, according to the AGC, protected confidences of the Privy Council and that a certificate had been issued by the Clerk of the Privy Council under section 39 of the Canada Evidence Act, RSC 1985, c C-5 [certificate]. No judicial review was sought against the certificate.
[23] In response to the application for judicial review, the AGC filed the affidavit of Cindy Moriarty, Director General of Health Canada’s Health Programs and Strategies. It comprises of 85 paragraphs and 31 exhibits, for a total of 821 pages. Mr. Richard submits that this affidavit is new evidence that was not available to the Privy Council at the time the decision that is now under judicial review was made, that the respondent’s record includes no ground or documentation to justify the decision to automatically exclude any person born before December 3, 1957, or after December 21, 1967, from the CTSSP and that the AGC is attempting to rely on Ms. Moriarty’s affidavit to justify the date of birth criterion. Although it is impossible to know whether the information in the affidavit was known to the Privy Council at the time it made the 2019 Order, considering the Clerk of the Privy Council invoked the protection of confidential information under the certificate, Mr. Richard states that the affidavit contains new information on the issue that the Governor General in Council was to decide when he adopted the 2019 Order, the document that states the eligibility criteria for the CTSSP.
[24] Mr. Richard therefore brought an interlocutory motion before Associate Judge Tabib to strike the affidavit. Associate Judge Tabib dismissed the motion because Mr. Richard did not show that there were exceptional circumstances that required the Court’s intervention on an interlocutory basis, and left the determination of the admissibility of Ms. Moriarty’s evidence to the judge on the merits. However, she issued the following comments in response to Mr. Richard’s argument that the evidence regarding the availability period of thalidomide should be inadmissible:
[translation]
However, the issue of whether thalidomide was available in Canada after December 21, 1967, is a factual issue that the applicant himself raised in his notice of application and about which he himself introduced new evidence that was not before the decision maker. Insomuch as the applicant’s evidence is admissible, it can reasonably be argued that the respondent’s evidence on the subject is admissible in response to the applicant’s evidence. The same can be said for the evidence regarding the “contextual situations” raised by the applicant in his notice of application and in the evidence he submitted.
[25] As a general rule, a court called upon to review the legality of a decision cannot consider evidence that was not before the administrative decision maker. One of the exceptions is when the affidavit provides general information in circumstances where that information might assist the Court in understanding the issues relevant to the judicial review (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19, 20).
[26] I am of the opinion that the situation in the present case falls under this exception. Moreover, during the hearing, the two parties supported their arguments using Ms. Moriarty’s affidavit. I will therefore not strike Ms. Moriarty’s evidence.
B. Question 1: Is the issue of the reasonableness of the date of birth criterion justiciable?
[27] During the hearing, Mr. Richard confirmed that although it involves the 2019 Order, his application is not specifically on the temporal eligibility criterion; that is not the issue. Rather, his motion is on the choice of the period of the dates of birth, which ends in 1967, five years after thalidomide was withdrawn from the Canadian market in 1962.
[28] In Wenham at paragraph 59, the Federal Court of Appeal states that the governing authority on justiciability is Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4 [Hupacasath], which drew directly from the Supreme Court of Canada’s decision in Operation Dismantle Inc v The Queen, [1985] 1 SCR 441, 1985 CanLII 74 (SCC) [Operation Dismantle]. I will start by citing Justice Stratas in Hupacasath at paragraphs 62 to 66:
[62] Justiciability, sometimes called the “political questions objection,” concerns the appropriateness and ability of a court to deal with an issue before it. Some questions are so political that courts are incapable or unsuited to deal with them, or should not deal with them in light of the time-honoured demarcation of powers between the courts and the other branches of government.
[63] Whether the question before the Court is justiciable bears no relation to the source of the government power …. For some time now, it has been accepted that for the purposes of judicial review, there is no principled distinction between legislative sources of power and prerogative sources of power ….
[64] I also agree with the Court of Appeal for Ontario in Black, supra, at paragraph 44 that “the source of the power—statute or prerogative—should not determine whether the action complained of is reviewable.”
[65] So what is or is not justiciable?
[66] In judicial review, courts are in the business of enforcing the rule of law, one aspect of which is “executive accountability to legal authority” and protecting “individuals from arbitrary [executive] action” …. In rare cases, however, exercises of executive power are suffused with ideological, political, cultural, social, moral and historical concerns of a sort not at all amenable to the judicial process or suitable for judicial analysis. In those rare cases, assessing whether the executive has acted within a range of acceptability and defensibility is beyond the courts’ ken or capability, taking courts beyond their proper role within the separation of powers.
[Citations omitted; emphasis added.]
[29] The AGC raises five arguments in support of his claims that the issue of the merits of the date of birth criterion and the specified period are not justiciable and therefore, the application should be dismissed.
(1) The 2019 Order is politically motivated
[30] First, the AGC states that the Governor in Council’s decision to issue the 2019 Order is politically motivated, being based on ideological, political, cultural, social, moral and historical considerations that are outside the Court’s jurisdiction. The AGC relies on the Supreme Court of Canada’s decision in Thorne’s Hardware, in which the Supreme Court had to decide whether a federal order in council extending the limits of the Port of Saint John so as to include the appellants’ waterfront property was “‘void, unlawful, unjust, discriminatory and ultra vires’ the Governor in Council.” The appellants alleged that the order had been made in bad faith and for improper motives to increase harbour revenues. The Supreme Court found that the courts have “neither [the] duty nor … right to investigate the motives which impelled the federal Cabinet” (Thorne’s Hardware at p 112). I agree with this statement, but do not see how it applies in this case. After all, the reason the Governor in Council created the date of birth criterion is not an issue that should be submitted to the Court for review; however, Mr. Richard is not questioning the Governor in Council’s motivation in this case.
[31] The AGC insists that the decisions made by the Governor in Council “in matters of public convenience and general policy are final and not reviewable in legal proceedings” and although the 2019 Order could be struck down “on jurisdictional or other compelling grounds”, only an “egregious” case would warrant such action (Thorne’s Hardware at p 111). At any rate, in Thorne’s Hardware, the Supreme Court noted the evidence on the record, not to review the considerations that may have motivated the Governor in Council to issue the order, but to show that the extension of the port was indeed an economic and political issue. However, in the present case, because of the lack of evidence on the issue of the temporal criterion other than the 2019 Order itself, there is no evidence before the Court to establish that the Governor in Council’s decision was based on ideological, political, cultural, social, moral or historical considerations, as asserted by the AGC; the underlying considerations—political or not—are not before the Court.
[32] In my opinion, the decision to limit the date of birth criterion to the dates at issue in this case is also not such that it can be determined prima facie that the underlying considerations are “so political that courts are incapable or unsuited to deal with them, or should not deal with them” (Hupacasath at para 62) and, therefore, that they are outside the Court’s jurisdiction, as in the case of a general’s strategic decision to deploy military forces in a given way during wartime (see Operation Dismantle); the decision to end an investigation into the actions of the Canadian Armed Forces in Somalia (see Dixon v Canada (Governor in Council) (CA), 1997 CanLII 6145 (FCA), [1997] 3 FC 169 [Dixon]; the order in council allowing military vessels access to certain Canadian ports (see Vancouver Island Peace Society v Canada (TD), 1993 CanLII 2977 (FC), [1994] 1 FC 102 [Vancouver Island]; or, lastly, whether an ex gratia payment under an order issued pursuant to the royal prerogative was fair (see Stemmler v Canada (Attorney General), 2016 FC 1299 [Stemmler]).
[33] On the contrary, the issue of the reasonableness of the date of birth criterion does not call into question the considerations that may have led the Governor in Council to establish the CTSSP or to make the decision to impose a temporal limit as a criterion of the program. The question before me is the reasonableness of the temporal limits that were actually set. In my opinion, this issue, with no other evidence, does not seem to correspond to a politically motivated consideration. I do not doubt that the decision to create the CTSSP and perhaps even the decision to include a temporal aspect as an eligibility criterion based on probability were political decisions, but the determination of the exact time period likely was not, until proven otherwise, and we do not have that proof in this case. It seems that we have crossed the line that separates policy and the implementation of that policy, an example of “law-making” that must be reviewed using Vavilov (Innovative Medicines Canada v Canada (Attorney General), 2022 FCA 210 at para 38).
[34] As I mentioned, in Dixon, the Federal Court of Appeal had to determine whether the Governor in Council had acted ultra vires by terminating an investigation into the actions of the Canadian Armed Forces in Somalia. I do not see how this decision supports the AGC’s position. It is not, as in Dixon, a matter of determining whether the Governor in Council had overstepped his jurisdiction by setting the date of birth criterion, but rather of determining whether that criterion is reasonable. Moreover, I acknowledge that the Federal Court of Appeal determined that the legislative provision in this case does not grant the Court the jurisdictional basis to review the reasonableness of a validly enacted exercise of discretion by the Governor in Council (Dixon at p 182); however, especially since Hupacasath, I do not think that such a statement can support the simple fact that a discretionary decision by the Governor in Council could, in itself, insulate that decision from the judicial review of the Court. In fact, the Federal Court of Appeal clearly stated that it “may well be” that the refusal of the Governor in Council to extend the investigation was motivated by political expediency, but that is not the business of the Court (Dixon at p 182). In this case, I do not have this level of certainty.
[35] In Vancouver Island, the Court had to decide whether the orders in council to allow military vessels to access certain Canadian ports had been issued in bad faith and constituted an abusive exercise of the royal prerogative. The Court ruled that it was a political issue related to international relations and national defence. The AGC cited the following paragraph at page 132:
Clearly the Orders in Council here questioned are decisions legislative in nature, made in the exercise of discretion and beyond the scope of judicial review so far as they lie within the jurisdiction of the Governor in Council under the prerogative power. Whether they do so lie is an issue dealt with after considering other preliminary issues raised.
[36] The AGC submits that this decision confirms the position that the Governor’s discretionary power is not subject to judicial review. Aside from the fact this decision was rendered 21 years before Hupacasath, there is no doubt that the contested order in council in that case was strictly a foreign and defence policy matter of the Government of Canada, and involved political considerations pure and simple. As with Dixon, I am not convinced that this is true in the present case.
[37] The AGC also relies on Canadian Society of Immigration Consultants v Canada (Citizenship and Immigration), 2011 FC 1435, [2013] 3 FCR 488 [CSIC], in which the Court had to review the validity of the orders and regulations that revoked the licensing power of the Canadian Society of Immigration Consultants and then transferred this power to another regulatory body chosen by the government. The AGC cited paragraph 103, reproduced below for convenience:
[103] Five, 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. Canada, 2008 FCA 229, [2009] 3 F.C.R. 136, at paragraph 57 and Mercier v. Canada (Correctional Service), 2010 FCA 167, [2012] 1 F.C.R. 72, at paragraphs 78 and 80). Such approach is entirely consistent with the treatment reserved in cases of legislation passed by Parliament or a legislature (Imperial Tobacco, above, at paragraphs 58 to 60).
[38] First, that decision was rendered before Hupacasath. Moreover, in that decision, the applicant stated, among other things, that the Governor in Council and the minister had exceeded their jurisdiction and acted ultra vires their regulation-making authority under the Act for abuse of statutory discretion because the impugned decisions were not made in good faith and with impartiality, and that the Minister’s revocation of the Canadian Council for Refugees’ designation was vitiated for breach of procedural fairness. Indeed, the issue in SCCI was whether the process leading to the impugned enactments was fair and transparent. These are not the issues Mr. Richard is raising before me and that decision is of limited usefulness.
(2) The Crown’s royal prerogative to use discretion to grant ex gratia payments
[39] The AGC states that the date of birth criterion is part of an order in council issued under the Crown’s royal prerogative to grant ex gratia payments, a discretionary power that is relatively free of legal constraints. As the Governor in Council did not have the legal obligation to create the CTSSP or to develop eligibility criteria a certain way, there are no legal issues to be raised in this case, not even by Mr. Richard. The validity or reasonableness of the date of birth criterion is part of an order in council that was established under the prerogative to grant ex gratia payments, a power that is not constrained by a law and should not be subject to review by the Court.
[40] The AGC states that he is not arguing that the nature of the power exercised is a determining factor in itself; however, he is of the opinion that the important thing is that the power is exercised without constraint. There is no law that governs or defines, for example, the standard of review that should apply or how the decision maker should make the decision.
[41] First, as I noted above, the fact that a decision made by the Governor in Council was discretionary cannot, in itself, insulate the decision from the judicial review of the Court; Hupacasath teaches us that this is not relevant (Hupacasath at paras 61-64). Moreover, a decision regarding whether an ex gratia payment is to be made can be subject to judicial review (Stemmler at para 70). Additionally, regardless of the issue of whether Mr. Richard had a reasonable expectation of receiving financial support through the CTSSP, Mr. Richard acknowledges that the Canadian government had no legal obligation to create the CTSSP. Ms. Moriarty’s testimony simply states that the CTSSP, the 1991 Assistance Plan and the 2015 Program were implemented because the government thought it was necessary to provide financial support to thalidomide survivors. However, unlike the establishment, for example, of compensation levels for a government program which is based in particular on political, cultural, social, moral and historical considerations, which Mr. Richard concedes, the determination of a specific temporal element of the eligibility criterion is not based on such considerations. I agree. The fact that there was no legislative or regulatory constraint on the Governor in Council when he issued the 2019 Order does not change the issue of whether the decision that was made regarding the date of birth criterion was “the sort of things that courts in their judicial review role can assess” (Wenham at para 63).
[42] Lastly, the AGC raised Fontaine v Attorney General, 2017 FC 431 [Fontaine], a decision involving the 2015 Program in which the Court ruled that the eligibility criteria for the Program comprised part of a policy decision and were subject to judicial review (Fontaine at para 43). However, in Wenham, the Federal Court of Appeal noted that the validity of Fontaine was questionable since the Federal Court did not consider the above-noted principles, stated in Hupacasath (Wenham at para 59). The Federal Court of Appeal noted that:
the challenge is to the reasonableness of a decision to limit the availability of benefits to a particular group of claimants and to narrow the evidence that will be considered. As explained in Hupacasath, these are very much the sort of things that courts in their judicial review role can assess (Wenham, at para 63).
[Emphasis added.]
[43] Even without the Federal Court of Appeal’s comments about that decision, it is clear from paragraph 39 of Fontaine that the program in question comprised a policy decision by the Minister. As I stated above, I am not convinced that this is the case in the matter before me.
[44] I also find Stemmler to be of limited usefulness. That case was to determine whether the ex gratia payment to the applicant was sufficient. In the present case, even though payments through the CTSSP were ex gratia, the issue does not involve the payments themselves or the development of the CTSSP but rather the reasonableness of the decision to set the period as it was set in the criteria.
(3) Lack of reasonable expectation to receive financial support
[45] The AGC states that Mr. Richard does not have the right or reasonable expectation to receive financial support under the CTSSP, that the payments were made on compassionate grounds; Mr. Richard could therefore not have a reasonable expectation to receive financial support unless he met the eligibility criteria. The AGC referred to Black v Canada (Prime Minister), 2001 CanLII 8537 [Black], from the Court of Appeal for Ontario, in which the issue was whether the exercise of the Crown honours prerogative—in that case, advice by the Prime Minister of Canada to the Queen about the nomination of Conrad Black as a peer—was justiciable; the Court found that it was not. In the decision, the Court refers to Council of Civil Service Unions v Minister for the Civil Service, [1984] 3 All ER 935, [1984] UKHL 9, [1985] AC 374 (HL), in which the House of Lords noted two ways in which the exercise of a prerogative might affect the rights of an individual: on one hand, by altering the individual’s legal rights and obligations, meaning when the decision that is subject to judicial review has consequences on that person by altering rights or obligations that are enforceable by or against that person or by depriving that person of a benefit or advantage he or she had enjoyed in the past and could therefore legitimately expect to be permitted to continue enjoying; or, on the other, where the person has received assurance from the decision maker that the benefit or advantage will not be withdrawn without first providing the person with an opportunity to present reasons for which it should not be withdrawn.
[46] First, I am not convinced that the absence of a reasonable expectation of financial support constitutes a strictly necessary element in the circumstances for the issue to be justiciable. At any rate, I asked the AGC if the members of the class action, settled in 2020, nonetheless had a reasonable expectation of receiving financial support from the CTSSP. The AGC replied in the negative, given the fact the ex gratia payment that was made on compassionate grounds, with no obligation, resulted from the Governor in Council’s prerogative, a power unconstrained by legislation.
[47] I was not convinced by this point by the AGC; there is no evidence in the record about whether there was a link between the government’s risk of liability regarding the class action and the CTSSP. We must keep in mind that in February 2018 the government announced that the 2015 Program would be expanded and that the class action was certified by the Federal Court of Appeal in November 2018, As a result, I am not prepared to conclude that the payments made under the CTSSP were made on strictly compassionate grounds. Moreover, with no such evidence, I cannot conclude that the government’s announcement in February 2018, the class action or any related settlement did not create a reasonable expectation for Mr. Richard to receive financial support und