Date: 20040604
Ottawa, Ontario, June 4, 2004
Present: THE HONOURABLE JUSTICE BEAUDRY
BETWEEN:
GAIL KASTNER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a judicial review of a decision of Ken Duford ("Minister's delegate") of the Allan Memorial Institute Depatterned Persons Assistance Plan ("Plan"), erroneously dated March 14, 1994, dismissing the Applicant's application for compensation under the Order Respecting Ex Gratia Payments to Persons Depatterned at the Allan Memorial Institute Between 1950 and 1965, P.C. 1992-2302 ("Order").
BACKGROUND
[2] Between 1950 and 1965, Dr. Ewen Cameron conducted research and provided psychiatric care at the Royal Victoria Hospital in Montreal.
[3] He developed a treatment for depression and schizophrenia. The aim of the therapy was to "destructure" the patient's personality, effectively rendering the patient into a childlike state. From there, the patient's brain could be restructured without the disease. Dr. Cameron used sleep therapy, followed by massive amounts of electro-convulsive shock treatments ("ECTs") as well as sensual deprivation and drugs to destructure the patient.
[4] It was in 1955 that his full destructuring procedure was perfected and subsequently published. However, the procedures practiced before 1955 involved most of the depatterning features, in particular induced sleep and ECTs.
[5] The treatment caused long lasting damage on the patients involved. The negative effects included reversion to infantile behaviour and memory loss. Dr. Cameron's theory and techniques are now thoroughly discredited.
[6] In 1986, the federal government asked George Cooper, a lawyer, to prepare a report on Dr. Cameron. He produced a report ("Report") dealing with the treatments administered in the 50s and the 60s and recommended that an ex gratia payment of $100,000 be made to each individual who had undergone the treatment as an "expression of the Canadian community's collective sense of accountability for events which took place in good faith but with ill effect". The Report did not, however, conclude that either Dr. Cameron or the federal government had been negligent.
[7] On November 16, 1992, the Order which is the basis of this case was promulgated. It provided for, upon submission of an application before January 1, 1994, an ex gratia payment of $100,000 to depatterned persons.
[8] The Applicant, Ms. Gail Kastner, was hospitalized in the Allan Memorial Institute ("AMI") from January 14, 1953 to February 18, 1953 and then from March 5, 1953 to April 23, 1953. While there, she was diagnosed with schizophrenia and underwent treatment. As her medical record shows, she received 43 electroshock treatments, four of which were Page-Russells, each of which was six times more intense than a regular electroshock treatment, for an actual total of 63 electroshock treatments. She was also subjected to insulin comas.
PREVIOUS DECISIONS
[9] On September 29, 1993, Ms. Kastner filed a request for indemnity under the Order. To support her claim, she presented expert reports by psychiatrists Dr. L. Hoffman and Dr. G. Pierre-Louis, both of which stating, based on the treatment undergone by the Applicant, that "there is a clear linking of enforced sleep and massive ECT use which constitutes the rudiments of depatterning".
[10] Marc Gervais, manager of the Plan, assessed Ms. Kastner's claim. In his decision dated January 20, 1994, he denied her claim as follows:
The medical evidence you provided does not indicate that you were subjected to depatterning as defined in the Order in Council. The evidence does not indicate that you were subjected to sleep therapy and/or depatterning. The evidence does indicate that you received electroshock treatments. This does not constitute "massive electroshock treatments" which was an essential process used in depatterning of patients. As well, there is no evidence that the treatment you received reduced your mind to a childlike state.
[11] Ms. Kastner appealed the manager's decision. With her appeal, Ms. Kastner included two affidavits, one from her twin sister and one from her brother-in-law. Both attested that after her release from the AMI, Ms. Kastner displayed child-like traits. Ms. Kastner also included an opinion by psychiatrist Dr. L. Stern.
[12] In a letter dated March 14, 1994 (there was obviously a mistake in the dating of the letter as it makes reference to a letter of March 25th and representations made on March 31st), Ken Duford upheld the decision to deny Ms. Kastner's claim. He took into consideration the affidavits submitted by the Applicant's sister and brother-in-law and by Dr. Stern despite the fact that this evidence was not before the first decision-maker, as reflected in the refusal letter:
We have reviewed your client's, Ms. Kastner, application under the [...] Plan as a result of your letters of March 11th and 25th, representations you made at a recent meeting in Ottawa with members of the Justice Review Committee on March 22th and 31st and the various affidavits you submitted.
Based on a detailed review of all information provided we must advise you that our decision in Ms. Kastner's application remains unchanged. The medical treatment she received as a patient at the Allan Memorial Institute clearly does not meet the criteria for payment as required by the Order in Council.
[13] This decision by Ken Duford is the subject of the present judicial review.
ISSUES
[14] The issues are as follows:
1. What evidence is admissible in the proceeding?
2. Does the fact that the Applicant sued the government before the Superior Court of Quebec make her ineligible to the ex gratia payments because of the waiver protecting the government and the AMI against court actions she allegedly signed?
3. Should the principle of issue estoppel be applied in the present case?
4. What is the standard of review of the decision to deny the ex gratia payment to the Applicant?
5. Was it reasonable for the Minister's delegate to determine that Ms. Kastner's treatment did not amount to "depatterning treatment" and that she was not a "depatterned person"?
6. Did the decision create unauthorized discrimination and did it violate section 15 of the Canadian Charter of Rights and Freedoms?
[15] For the reasons outlined below, I come to the conclusion that the decision made by the Minister's delegate was not reasonable.
ANALYSIS
1. What evidence is admissible in the proceeding?
[16] The Respondent filed in this Court the opinion of psychiatrist Dr. André Maufette dated September 15, 1998 and used before the Superior Court of Quebec in Ms. Kastner's unsuccessful civil liability suit. I agree with the Applicant that this evidence is inadmissible because Dr. Maufette's opinion was given after Mr. Duford made his decision to deny her request for an ex gratia payment. Evidence that was not before the decision-maker is inadmissible in a proceeding for judicial review (Asafov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 713 at paragraph 2 (T.D.) (QL)). The same inadmissibility principle goes for the rest of the evidence (including answers to cross-examination) that was adduced before the Superior Court but that was not before the decision-maker Ken Duford.
[17] Ms. Kastner has also made a submission which is inadmissible i.e. that her counsel's law firm filed applications in other patients' name for an ex gratia payment under the Plan and that these applications were granted despite the fact that the applicants had undergone less powerful treatment than Ms. Kastner had. This submission is not accompanied by any evidence and therefore is inadmissible.
2. Does the fact that the Applicant sued the government before the Superior Court of Quebec render her ineligible to the ex gratia payment because of the waiver protecting the government and the AMI against court actions she allegedly signed?
[18] Section 3 of the Order reads:
The Minister is hereby authorized, on the submission of an application in accordance with section 4, to make an Ex Gratia payment of $100,000 to any depatterned person:
[...]
(b) who has signed a waiver protecting Her Majesty in right of Canada and the Royal Victoria Hospital against court actions;
[...]
[19] The Respondent argues that the eligibility condition consisting of signing a waiver protecting the federal government and the Royal Victoria Hospital against court actions has been broken as the Applicant sued these two entities before the Superior Court of Quebec. In March 1995, the Applicant did sue for damages the Attorney General of Canada and the Royal Victoria Hospital (Kastner v. Royal Victoria Hospital, [2000] Q.J. No. 1060 (QL)). The Superior Court ruled against Ms. Kastner and the Quebec Court of Appeal affirmed the trial court's decision (Kastner v. Royal Victoria Hospital, [2002] Q.J. No. 568 (QL)). Yet, I cannot agree with the Respondent's argument. The Respondent did not file in evidence the waiver it is relying on and therefore, it is impossible to verify its scope. The lawsuit was filed one year after the Applicant had received the negative answer from Mr. Duford and I am not in a position to know if that would bar her from receiving the ex gratia payments under the Order. This waiver agreement was not raised in the Respondent's oral submissions.
3. Should the principle of issue estoppel be applied in the present case?
[20] According to the Respondent, the question of whether the Applicant underwent full or substantial depatterning treatment or even the rudiments of this treatment has already been ruled on, which means the doctrine of issue estoppel should apply and the Applicant should not be entitled to come before this Court with her matter.
[21] The issues before the Superior Court of Quebec were 1) limitation period, 2) medical error in diagnosis or in treatments, 3) breach of the obligation to inform and to obtain a valid consent, and 4) "lien de préposition". The issue of medical error in diagnosis or in treatments was focused on the determination of Dr. Cameron's liability based on his having administered treatments which were inappropriate because of a wrong diagnosis of Ms. Kastner's medical problem. In other words, the Superior Court asked itself if Dr. Cameron and the hospital were liable because of a manifest error in diagnosis leading to error in treatment leading to worsening of the problem or death, all of this measured against what generally known standards of medical knowledge in the 1950s. The question Nadeau J. had to ask himself was whether Dr. Cameron acted like a "reasonable professional" who demonstrates a normal level of competence in the circumstances.
[22] It is clear that asking whether there is civil liability under civil law given the state of knowledge in the 1950s is not the same thing as asking whether a patient is eligible for no-fault compensation under a decree. The fact that the Superior Court touched on the issue of depatterning in determining whether the "reasonable professional" standard was breached does not mean the same question is being asked before this Court. The Superior Court dismissed the Applicant's proceedings on the grounds of limitation period. It did however examine the medical evidence. In any case, even if one was to conclude that the Superior Court already ruled on the "same question" of depatterning, I would use the discretionary power bestowed upon me to refuse to apply the issue estoppel on the basis that an injustice would otherwise be created (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, paragraphs 62, 80). This injustice lies in the fact that the conclusion of the Superior Court on depatterning is based entirely on Dr. Maufette's evidence, which was not before Ken Duford when he denied the Applicant's payment under the Order, and that new evidence is inadmissible in a judicial review proceeding. I conclude that it would not be appropriate to apply the issue estoppel doctrine in this case.
4. What is the standard of review of the decision to deny the ex gratia payment to the Applicant?
[23] It is not disputed that a decision whether or not to grant an ex gratia payment is subject to judicial review (Schavernoch v. Canada (Foreign Claims Commission), [1982] 1 S.C.R. 1092, Schrier v. Canada (Deputy Attorney General), [1996] F.C.J. No. 246 (T.D.) (QL), Mercier-Néron v. Canada (Minister of National Health and Welfare), [1995] F.C.J. No. 1024 (T.D.) (QL)).
[24] Ms. Kastner submits that the standard of review of the decision is correctness, or, at most, reasonableness simpliciter. She notes that there is no privative clause in the Order, there is some discretion accorded to the Minister in determining whether the payment should be made, a major human rights component is involved, and the decision-maker here has no specific expertise.
[25] The Respondent submits that where the question is one of law, then the standard of review is correctness.
[26] I conclude that the standard of review is reasonableness simpliciter for the following reasons.
[27] In Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at paragraph 26, McLachlin, C.J., writing for the Supreme Court of Canada, described the four factors in determining the standard of review as follows:
In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors -- 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 purposes of the legislation and the provision in particular; and, the nature of the question -- law, fact, or mixed law and fact. [...]
Privative clause
[28] As Ms. Kastner states, there is no privative clause in the Order. This factor suggests that the Court will pay little deference to the Minister.
Expertise of the decision-maker
[29] The decision-maker's expertise in this area is minimal, as the Order does not require that the decision-maker have any knowledge of psychiatry. So far as the issue is an issue of law, moreover, the Minister or his delegate does not have more expertise than the Court.
Purpose of the legislation
[30] The purpose of the order was to provide payments to those who underwent "depatterning treatment" while at the AMI. The Order provides payments in recognition of the trauma and suffering caused to patients who underwent depatterning treatment. On the one hand, there is very little discretion accorded to the Minister: the definition of "depatterning treatment" is clear, as is who qualifies for the payment. The amount of the payment is also strictly defined. On the other hand, what constitutes "prolonged sleep" and "massive electroshock treatments" is a question that requires knowledge of psychiatric treatment. On this point, I conclude that the deference accorded to the Minister or his delegate points to the standard of review of reasonableness simpliciter.
Nature of the question
[31] The Applicant submits that the question is one of law. The Respondent suggests that it is one of fact. The issue in the case at bar is, essentially, whether the ECTs, prolonged sleep suffered by Ms. Kastner and the consequences on her mind amount to "depatterning treatment" as defined under section 2 of the Order. I find that the question is one of mixed fact and law. The question is fact intensive, however, pointing to great deference to be accorded to the Minister or his delegate.
[32] Taking all the factors into consideration, I come to the conclusion that the standard of review of the decision is reasonableness simpliciter.
5. Was it reasonable for the Minister's delegate to determine that Ms. Kastner's treatment did not amount to "depatterning treatment" and that she was not a "depatterned person"?
[33] For greater clarity, I will reproduce the Order in its entirety.
ORDER RESPECTING EX GRATIA PAYMENTS TO PERSONS
DEPATTERNED AT THE ALLAN MEMORIAL INSTITUTE
BETWEEN 1950 AND 1965
Short Title
1. This Order may be cited as the AMI - Depatterned Persons Assistance Order.
2. In this Order,
"depatterned person" means a person who received full or substantial depatterning treatment at the Allan Memorial Institute in Montreal between 1950 and 1965 as a patient of Dr. Ewen Cameron;
"depatterning treatment" means prolonged sleep followed by massive electroshock treatments, reducing the patient's mind to a childlike state;
"Minister" means the Minister of Justice.
Authorization
3. The Minister is hereby authorized, on the submission of an application in accordance with section 4, to make an Ex Gratia payment of $100,000 to any depatterned person:
(a) who is a permanent resident of Canada and is alive at the time of the payment;
(b) who has signed a waiver protecting Her Majesty in right of Canada and the Royal Victoria Hospital against court action; and
(c) who has withdrawn any court action against Her Majesty in right of Canada.
4. An application for a payment shall be submitted to the Minister before January 1, 1994 by the depatterned person or a person acting on his or her behalf.
Payment
5. Each payment shall be a one-time lump sum.
No Crown Liability
6. Payments made under this Order shall not be construed as an admission of liability on the part of Her Majesty in right of Canada.
[34] I will now analyse various elements, including the purpose of the Order, the interpretation of the Order and the evidence presented by Ms. Kastner, in order to see if, on the whole, the decision made by Ken Duford was reasonable or not.
Purpose of the Order
[35] In general, the purpose of the law is a significant factor in assessing whether the proper criteria were observed. In this case, the purpose of the Order must be derived from its context and notably the Report. Both parties agree, and so do I, that the Order is to be given a broad interpretation. That is especially so considering the objective the Report intended it to have, as shown on page 2 of the Memorandum on Compensation in the Absence of Legal or Moral Responsibility, Appendix 53 of the Report (P-5). The objective was for the payment of ex gratia compensation "as an expression of the Canadian community's collective sense of accountability for events which took place in good faith but with ill effect", without the creation of fine and technical distinctions:
In spite of this conclusion, it is recognized that the circumstances of this case might give rise in some quarters to a demand for government action even in the absence of any legal or moral responsibility. Such action might include a referral of the matters in controversy to some other body which might be thought to have some measure of responsibility, a body such as the Canadian Psychiatric Association, or even the Allan Memorial Institute (or, more precisely, the Royal Victoria Hospital and/or McGill University). It might include some form of public inquiry on the subject of Cameron's work generally. Finally, it might include the payment of ex gratia compensation, not to redress a wrong for which the government should consider itself responsible, but simply as an expression of the Canadian community's collective sense of accountability for events which took place in good faith but with ill effect. (My emphasis)
Interpretation of the Order
[36] The Respondent argues that the question is whether Ms. Kastner was a "depatterned person" within the meaning of the Order and that there is no evidence that Marc Gervais and then Ken Duford asked themselves "whether Ms. Kastner received the full treatment available after 1955". According to the Respondent, the decision made by Marc Gervais and later confirmed by Ken Duford simply notes that none of the three conditions required in the definition of "depatterning treatment" (prolonged sleep, massive ECTs, reduction of the patient's mind to a childlike state) were met. The first two conditions need to be proven, not only the last one that deals with effects.
[37] I agree with the Applicant that the decision-makers do seem to have asked themselves "whether Ms. Kastner received the full treatment available after 1955" rather than the right question, which would have been "whether she was substantially depatterned in effect between 1950 and 1965". Asking the wrong question and therefore failing to consider a very relevant consideration, the word "substantially", renders the decision unreasonable.
[38] A depatterned person, according to section 2 of the Order, is a "person who received full or substantial depatterning treatment at the Allan Memorial Institute in Montreal between 1950 and 1965 as a patient of Dr. Ewen Cameron" (my emphasis). In the same section, depatterning treatment is defined as "prolonged sleep followed by massive electroshock treatments, reducing the patient's mind to a childlike state".
[39] It is important to understand that the treatments received by Ms. Kastner in 1953 (massive ECTs with drug-induced sleep) were the rudiments of depatterning treatments. The actual "depatterning treatments" (prolonged drug-induced sleeps and massive ECTs) did not commence until 1955, as confirmed on page 25 of the Report where it is stated that "[i]t was in 1955 that Cameron himself decided, in his words to 'develop the potentialities of this procedure [depatterning].'" Yet, the Order expressly provides for compensation for full or substantial depatterning treatments administered between 1950 and 1965. Since the full method of depatterning was not developed until 1955, if the legislator had intented it to be the criterion, he would not have used 1950 as the starting date. The legislator also made it clear he wanted to leave some flexibility in the analysis of the treatments received by Dr. Cameron's patients by using the term "substantial depatterning treatment". This flexibility is not reflected in the decision made by Marc Gervais and confirmed by Ken Duford, especially not in the words "[t]he evidence does not indicate that you were subjected to sleep therapy and/or depatterning."
[40] The question of whether the Applicant was substantially depatterned had to be considered and it was not. As stated by the Supreme Court of Canada in different cases including Oakwood Development Ltd. v. St. François Xavier (Rural Municipality), [1985] 2 S.C.R. 164, a failure to consider a relevant consideration vitiates a discretionary decision. At page 174 of the decision, it is stated:
[...] the failure of an administrative decision-maker to take into account a highly relevant consideration is just as erroneous as the improper importation of an extraneous consideration. [...]
Evidence presented by Ms. Kastner before the decision-maker
Conditions 1 and 2: The technique consisting of prolonged sleep and massive ECTs
[41] The evidence presented by Ms. Kastner to the decision-maker on conditions 1 and 2 of the "depatterning treatment" consisted of her medical record, expert opinions by psychiatrists Hoffman and Pierre-Louis and a letter by Dr. Stern who was following Ms. Kastner in 1952 and referred her to Dr. Cameron. It is important to note that no argument was made by the Respondent to the effect that there would have been any evidence contradicting or even shedding doubts on Ms. Kastner's evidence.
[42] During her two and one-half months at the AMI, Ms. Kastner received, according to her medical record, 43 electroshock treatments, four of which were Page-Russells. A Page-Russell is six times more intense than a regular electroshock treatment, which means she received an actual total of 63 electroshock treatments. She was also subjected to insulin comas and to different drugs to induce sleep.
[43] Dr. Hoffman, with whom Dr. Pierre-Louis concurred, is of the opinion that Ms. Kastner received massive, high-intensity ECTs, the whole in conjunction with the administration of barbiturates, in order to induce sleep (letters dated respectively September 29, 1993 and October 5, 1993). Dr. Hoffman also considered that there was a clear connection between the administration of the electroshocks and the barbiturates, which demonstrates that Ms. Kastner underwent the rudiments of depatterning treatments. It is worth reproducing excerpts from his expert opinion:
I wish to advise the Review Committee of my following opinions pertaining to her situational claim:
[...]
2) That she suffered an iatrogenic illness secondary to massive (and inappropriate) ECT use, drug use, and sleep induction. This resulted in an iatrogenic delirium and infantile regressive behaviour.
3) ECT use was massive and of an excessively high-level intensity.
4) That the ECT administration was coupled to previous night induced sleep. This was accomplished by use of barbiturates.
5) From the above points there is a clear linking of enforced sleep and massive ECT use which constitutes the rudiments of depatterning. [...]
[44] As for Dr. Stern, the only other expert whose evidence was before the decision-maker, he concludes that Ms. Kastner did indeed undergo depatterning treatment in a letter dated March 17, 1994:
Upon her discharge she displayed the usual symptoms of depatterning, that is memory loss that was and is severe and persists to this very day. She was unable to recognize her own family, not even her twin sister upon whom she depended upon (sic) and lived with as she was regressed to the level of a child. [...]
She was also drug addicted and dependant. For many years patient suffered from - convulsions, comas - (sic) ...
[45] To summarize, the evidence is clear that Ms. Kastner received large doses of insulin and barbiturates to induce sleep, followed by massive ECTs, including Page-Russells (one Page-Russell being the equivalent of six ECTs). As discussed in a point above, it was not necessary to prove prolonged sleep, which is a characteristic of the depatterning treatment that started in 1955, but simply induced sleep, as part of the rudiments of the depatterning technique. It is also important to remember that, according to the Order, undergoing substantial depatterning treatment was sufficient to qualify as depatterning treatment.
[46] I would make one last observation on this point of "prolonged sleep followed by massive electroshock treatments". The words used in the Order are very large. What does "prolonged" and "massive" mean? Since I already concluded that the decision-maker asked himself the wrong question by not considering whether Ms. Kastner was substantially depatterned with rudiments of the technique, it would seem to me that applying these very discretionary terms to a wrong question leads most inevitably to at least an unreasonable result.
Condition 3: The result of reducing the patient's mind to a childlike state
[47] Not only does the Order require the proof of a patient undergoing at least substantial depatterning treatment, but it also requires that the person's mind was reduced to a childlike state at a certain point in time as a result of undergoing the treatment. Both Ms. Kastner's medical record and affidavits filed by Zelda and Herbert Hoffman show her reversion to infantile conduct.
[48] Ms. Kastner's medical Record contains medical notations indicating that she was in a child-like state:
Admission of January 14, 1953: "She has demonstrated childish behaviour"
Admission of January 26, 1953: "Manner very 'cute and coy'. Talking babytalk and acting childish"
Admission of March 20, 1953: "Acted sarcastic and childish at times"
Admission of April 18, 1953: "Manner childish, laughing a great deal".
[49] During visits to the hospital and thereafter, the Applicant's twin sister, Zelda Hoffman, and her husband, Herbert Hoffman, noticed her regression to a child-like state, in that she was talking like a baby, suffering from urinary incontinence, sucking her thumb and demanding to be fed from a bottle, as appears from the following extracts of Ms. Hoffman's affidavit:
8. THAT when I would visit my sister at the Allan Memorial Institute, I found that she was in a child-like condition, by talking babytalk and sucking her thumb;
9. THAT after April 23, 1953, having completed her stay at the Allan Memorial Institute, I found her on many occasions urinating on the living room floor;
10. THAT the above child-like condition continued and persisted intermittently for many years, particularly the babytalk and thumb sucking;
11. THAT furthermore, my sister did not remember anything about her childhood or her past and to date, she has a very vague and unclear memory of same.
[50] The Respondent argues that Ms. Kastner was sufficiently well to decide to leave the AMI, on April 24, 1953, and not to come back. The medical record for that date indicates "Has gone out to sister's for the afternoon." A few days later, a note states that she did not return and therefore discharged. I cannot agree with the Respondent that "has gone out to sister's for the afternoon" means she deliberately decided to leave the AMI for good. The fact that she did not come back to the AMI does not necessarily mean that she decided not to. It is possible that other people took that decision and the result was she never actually returned to the AMI.
[51] The Respondent also points out that, in a letter dated June 15, 1955, which is part of the medical record, Ms. Kastner indicates she got engaged on December 21, 1954 to Bernard Trossman, whom she had been dating for five years. There is also a letter on file that was sent from Ms. Kastner to Dr. Cameron on June 15, 1955, in which she states she "made an excellent and complete recovery". On this point, I would point out that, as explained in the Allan Memorial Institute Depatterned Persons Assistance Plan Information Guide, persons who met the eligibility requirements as set out in the Order were entitled to receive the ex gratia payment regardless of their health status at the time they applied for the payment. In other words, as long as the person treated by Dr. Cameron was, at some point (vs for an extended period of time), reduced to a childlike state as a result of depatterning treatment undergone, that person was eligible for the payment. The fact that Ms. Kastner got engaged in 1954 and stated in 1955 that she had made an excellent recovery can coexist and not necessarily contradict the evidence from the medical record and the Hoffman affidavits that she was in a childlike state during and shortly after undergoing the treatment, even though that state did not persist indefinitely. I am satisfied that the evidence contained in the medical record and the Hoffman affidavits can support the proposition that Ms. Kastner's mind was reduced to a childlike state.
6. Did the decision create unauthorized discrimination and did it violate section 15 of the Canadian Charter of Rights and Freedoms?
[52] Firstly, Ms. Kastner relies on Montréal (City) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368 to say if there is discrimination, without statutory authorization, it will suffice to annul the decision in administrative law. At page 406 of the decision, Beetz J. quotes from Louis-Philippe Pigeon, Rédaction et interprétation des lois (1978), page 34:
... the power to make regulations does not include a power to adopt discriminatory provisions. In other words, unless the legislation authorizing it states the contrary a regulation must apply to everyone in the same way. If the intent is to make a distinction, this must be stated.
[53] According to the Applicant, the decision made an irrational distinction between Dr. Cameron's patients treated before 1955 and those treated after 1955, while no legislation authorized that distinction.
[54] The Respondent says that the Arcade Amusements Inc. decision only deals with discrimination in the context of delegated legislation. That was not the case with the decision made by Ken Duford. The Respondent also states that the decision did not make a distinction between the patients treated before 1955 and those treated after. In reality, the reason for refusing the application for the ex gratia payment was that none of the three conditions required in the "depatterning treatment" definition was met.
[55] Secondly, Ms. Kastner argues that the distinction created discrimination under section 15 of the Charter on the basis of handicap in that, although she suffered the same disastrous consequences as Dr. Cameron's later patients, she is excluded. She states that handicaps have been established as an illegal ground of discrimination and that not all handicapped persons need be affected - the exclusion of a portion of a group leads to judicial review.
[56] The Respondent argues, amongst other things, that the fact of having undergone a rudimentary depatterning treatment before 1955 does not constitute one of the grounds enumerated in section 15 or an analogous ground. Having undergone such a treatment is not a personal characteristic such as a handicap or a disease.
[57] I conclude it is not necessary to analyze these two questions as I already found that the unreasonableness of the decision from an administrative law point of view is sufficient to nullify the decision and allow the Applicant's application. In any event, I already found that a proper interpretation of the Order required that patients treated before 1955 with the rudiments of the depatterning techniques be included in the application of the Order.
CONCLUSION
[58] For the above reasons, in particular the fact that the decision made by Ken Duford was unreasonable in light of the purpose of the Order, the faulty interpretation given to it and the strong evidence presented (medical record, expert opinions and affidavits by relatives), I will allow the application.
ORDER
THIS COURT ORDERS that Mr. Ken Duford's decision is annulled. The Applicant is entitled to receive the $100,000 ex gratia payment (Popov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 489 (T.D.) (QL)). This matter is to be sent back to the Minister to be dealt with in accordance with my reasons.
"Michel Beaudry"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1755-02
STYLE OF CAUSE: GAIL KASTNER v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: May 18, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE BEAUDRY
DATED: June 4, 2004
APPEARANCES:
Alan M. Stein
Julius Grey FOR THE APPLICANT
Frédéric Paquin
André Lespérance FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stein & Stein
Montreal, Quebec FOR THE APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada
Montreal, Quebec FOR THE RESPONDENT