Executive Summary: Key Legal and Evidentiary Issues

• Strict compliance with Rule 3.15 of the Alberta Rules of Court regarding both filing and service of judicial review applications was required; failure to serve the Appeal Panel within six months was fatal to the application.

• The Appeal Panel’s authority was limited to reviewing the Director’s decision for the 2017–2018 funding year and could not address funding or contract terms for subsequent years.

• Claims regarding breaches of Charter rights and dignity were not substantiated or properly raised before the Appeal Panel, and the Panel’s jurisdiction did not extend to constitutional determinations.

• The Court found no procedural unfairness or breach of natural justice despite delays, attributing them to various causes including illness, correspondence, and the COVID-19 pandemic.

• The relief sought by the Applicants, including an omnibus FMSA and monetary awards for periods beyond the Panel’s decision, was beyond the jurisdiction of the Court on judicial review.

• Costs were awarded to the Respondent due to the unsuccessful application by the Applicants.

Background and facts of the case

Curtis Perry, an individual with a developmental disability, was entitled to services under the Persons with Developmental Disabilities Services Act, RSA 2000, c P-9.5. His parents, Catherine Perry and Richard Perry, managed his care through a Family Managed Services Agency (“FMS Perry”) and had historically received exemptions from the policy prohibiting immediate family members from being paid caregivers under a Family Managed Services Agreement (“FMSA”). These exemptions were granted to ensure Curtis received care when regular staff were unavailable.

Since 2013, services to Curtis were provided under various FMSAs, with the most recent agreement dated June 3, 2016, covering June 1, 2016, to May 31, 2017. The Perrys objected to certain conditions proposed by Persons with Developmental Disabilities Services, Edmonton Region (“PDD-DS”) for the 2017–2018 FMSA, including denial of a guaranteed exemption for up to 40 hours per week in a “Team Leader” role, wage increases, adjustments for inflation, increased kilometrage, retention of the Team Leader position, and a budget decrease of not more than 8%. The Perrys did not sign the proposed FMSA for 2017–2018.

After failed mediation, the Perrys filed a Notice of Appeal on October 13, 2017, which was denied by the Minister’s delegate on October 20, 2017, on the basis that an appeal was not available. The Perrys then filed for judicial review of this decision. Justice Ackerl, in a decision dated January 21, 2019 (Perry v Alberta (Community and Social Services), 2019 ABQB 43), found the Director’s May 12, 2017, decision appealable and directed the matter to the Appeal Panel.

The Appeal Panel addressed preliminary objections and, after delays including those caused by COVID-19, heard the appeal by written submissions on March 4, 2022. The Appeal Panel’s decision was released on May 31, 2022, and is the subject of this judicial review.

Policy terms and Appeal Panel decision

The Appeal Panel varied the Director’s decision to allow the Perrys to work up to 40 hours per week at the “Team Leader rate” for the period June 1, 2017, to May 31, 2018, but confirmed the Director’s decisions on all other points:

• No further adjustment for minimum wage increases, as wages and budgets had already been adjusted according to Government of Alberta minimum rates.

• Increases to the budget for “Administration and Service Delivery” costs would be based on future submissions and at the Director’s discretion.

• The $0.30 per kilometer rate was confirmed.

• Funding for a Team Leader at least 16 hours per week was confirmed.

• The overall budget was approved at $171,000.00 for the 2017–2018 term.

Judicial review and legal analysis

The Perrys argued that the Appeal Panel’s decision was unreasonable for not resolving funding and budgetary terms to the present time, limiting relief to the 2017–2018 period, and thereby restricting their ability to seek further relief due to limitation periods and alleged Charter breaches. They sought an order for an omnibus FMSA from June 1, 2017, to the present, with funding based on the last agreement and adjustments to be finalized within twelve months.

The Respondent submitted that the Originating Application did not name or serve the Appeal Panel as required by Rule 3.15(3)(a) of the Alberta Rules of Court, and that the Appeal Panel’s decision was reasonable. The Court found that the application for judicial review named only His Majesty the King in Right of Alberta, as represented by the Minister of Seniors, Community and Social Services, and the Appeal Panel was not served within the required six-month period. The Court cited Tartal v Alberta (Human Rights Commission), 2023 ABKB 381, confirming that compliance with Rule 3.15 is mandatory and failure to serve within the limitation period is fatal.

The Court also considered the merits in the alternative. It found that the Appeal Panel acted within its authority under the PDD Act, reasonably limited its decision to the 2017–2018 funding year, and did not have jurisdiction to grant ongoing or future funding. The Charter arguments were not clearly articulated or raised before the Panel, and section 7 of the Charter does not confer a constitutional right to a certain level of funding for health or social benefits. The Court found no evidence of procedural unfairness, attributing delays to various factors including illness, correspondence, and the COVID-19 pandemic.

Outcome and costs

The Court allowed the application to strike the Notice of Appeal for failure to comply with Rule 3.15(2) and (3) of the Rules of Court and dismissed the application for judicial review. The relief sought by the Perrys, including an omnibus FMSA and monetary awards for periods beyond the Panel’s decision, was found to be beyond the jurisdiction of the Court on judicial review. A single set of costs combining both applications was awarded to the Respondent, payable by the Applicants under Column 1 of Schedule C of the Rules of Court, for applications made requiring a brief. No specific monetary amount was determined for the Applicants; the successful party was the Respondent, who was awarded costs.