Mercier-Néron v. Canada ( Attorney General )
T-978-92
Denault J.
30/6/95
9 pp.
Application for judicial review of Director of the Extraordinary Assistance Plan for Thalidomide Victims' decision denying application for assistance under Order -- Order provided for payment of compensation to thalidomide victims having permanent residence in Canada and alive at time of payment -- Issue whether Director created reasonable expectation on applicant's part she had right to hearing-Following her application for registration in Plan, applicant received documents informing her she could choose between having her application adjudicated in hearing or having it reviewed only on basis of material submitted -- Applicant chose hearing -- Hearing never held and application denied on ground applicant did not meet Plan's eligibility criteria -- In spite of statements by mother she had taken eligible drug in first few months of pregnancy, by pharmacist's assistant at pharmacy where she said she obtained drug, and by physician who had prescribed drug, Director maintained documentation did not establish mother had taken drug during first trimester of pregnancy -- Duty to act fairly must be complied with when government, responsible for implementing program of payments established by order in council, derives its enabling power from royal prerogative -- Respondents created legitimate expectation on applicant's part she had right to hearing -- Although respondent stated applicant's application analyzed on basis she had no contemporary documents showing her mother took drug, it was because of lack of such documents respondent denied application: at very least, respondent did not provide proper reasons to justify dismissal of application -- Director of Plan argued purpose of hearing to establish disability level for individuals who met eligibility criteria -- However, nothing in application or documents provided by respondents could have led applicant to think she would be entitled to hearing solely to establish her disability level and not to establish her eligibility for Plan -- Reason for refusing to hold hearing not justified -- In so far as in this respect applicant had legitimate expectation she was entitled to hearing and applied therefor, respondent breached duty of procedural fairness by refusing to hold one -- Statements by applicant's mother and physician, as well as circumstances of case, provided information sufficiently serious, precise and consistent to justify inference applicant's mother took eligible drug -- Application allowed -- HIV-infected persons and Thalidomide Victims Assistance Order, P.C. 1990-4/872