Nova Scotia (Minister of Health) v. J.J., 2005 SCC 12, [2005] 1 SCR 177

                                                 SUPREME COURT OF CANADA

Between:

J.J.

Appellant

v.

Nova Scotia (Minister of Health)

Respondent

‑ and ‑

Advocacy Centre for the Elderly, People First of Canada and

Canadian Association for Community Living

Interveners

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

Nova Scotia (Minister of Health) v. J.J., [2005] 1 S.C.R. 177, 2005 SCC 12

J.J.                                                                                                                     Appellant

v.

Nova Scotia (Minister of Health)                                                                 Respondent

and

Advocacy Centre for the Elderly, People First of Canada and

Canadian Association for Community Living                                               Interveners

Indexed as:  Nova Scotia (Minister of Health) v. J.J.

Neutral citation:  2005 SCC 12.

File No.:  29717.

2004:  November 4; 2005:  March 18.

Present:  McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for nova scotia

Adult protection — Plan of care for adult in need of protection — Family Court jurisdiction — Whether Family Court has jurisdiction to impose terms and conditions on plan proposed by Minister of Health for vulnerable adult’s care — Adult Protection Act, R.S.N.S. 1989, c. 2, s. 9(3)(c).

A Family Court judge declared J to be an adult in need of protection under s. 9 of the Nova Scotia Adult Protection Act and accepted the Minister of Health’s proposed plan of care, which was to place J in her apartment under strict conditions of daily supervision and support.  Because funding was not approved for the supervising personnel, the Minister sought a variation order and the approval of a new plan which called for J to be placed in a facility located outside the Halifax region.  The judge renewed the order authorizing the Minister to provide J with services, including placement in a facility, but ordered that J not be placed in an institution outside the Halifax region.  She concluded that the Minister’s proposed placement was contrary to J’s welfare and would not enhance her ability to care and fend for herself.  The Court of Appeal found that the Family Court judge had exceeded her jurisdiction by prohibiting J’s placement outside the Halifax region, holding that when the Family Court is provided with only one plan of care, its jurisdiction under s. 9(3)(c) of the Adult Protection Act is limited to simply accepting or vetoing it.

Held:  The appeal should be allowed.

The Family Court judge did not exceed her jurisdiction.  Section 9(3)(c) must be interpreted in a manner consistent with the purpose of the Adult Protection Act:  to provide adults who cannot protect or care for themselves with access to services which are in their best interests and will enhance their ability either to look after or protect themselves (s. 2).  The governing consideration is the welfare of the adult (s. 12).  Since the responsibility for ensuring the welfare and best interests of the vulnerable adult is legislatively assigned to the Family Court, when the court declares an adult to be in need of protection under s. 9(3), it has jurisdiction under para. (c) to  assess whether the services to be provided by the state are consistent with the adult’s welfare and best interests and to amend the Minister’s proposal where necessary to ensure legislative compliance. [16] [20-21]

Cases Cited

Referred:  Nova Scotia (Minister of Community Services) v. L.K. (1991), 107 N.S.R. (2d) 377.

Statutes and Regulations Cited

Adult Protection Act, R.S.N.S. 1989, c. 2, ss. 2, 3(b), 7, 9(1), (3), (6), (7), 12.

APPEAL from a judgment of the Nova Scotia Court of Appeal (Roscoe, Freeman and Hamilton JJ.A.) (2003), 212 N.S.R. (2d) 193, 665 A.P.R. 193, [2003] N.S.J. No. 57 (QL), 2003 NSCA 25, allowing an appeal from a decision of Legere J. (2002), 202 N.S.R. (2d) 362, 632 A.P.R. 362, [2002] N.S.J. No. 153 (QL), 2002 NSSF 19.  Appeal allowed.

Claire McNeil and Susan Young, for the appellant.

Edward A. Gores, for the respondent.

Graham Webb and Judith A. Wahl, for the intervener the Advocacy Centre for the Elderly.

Phyllis Gordon, Dianne Wintermute and Roberto Lattanzio, for the interveners People First of Canada and Canadian Association for Community Living.

The judgment of the Court was delivered by

1                                Abella J. — When adults are neglected, abused, or otherwise unable to care for themselves, the state can decide to take them under its protective wing and provide necessary services.  When an adult’s care is so entrusted, however, a court is required to review and monitor the state’s judgment.  The issue in this appeal is the scope of that ongoing review under Nova Scotia’s adult protection legislation.

Background

2                                The legislative scheme underlying this dispute is found in Nova Scotia’s Adult Protection Act, R.S.N.S. 1989, c. 2.  Section 3 of the Act generally defines an adult in need of protection as one who, because of physical or mental disabilities, is unable to protect himself or herself from physical, mental or sexual abuse; or who does not or cannot provide for his or her own adequate care and attention because of physical or mental disabilities.

3                                Since April 5, 2000, the Minister of Health has been responsible for the administration of the Act. If, after an assessment, the Minister is satisfied that an individual who is willing to accept assistance is an adult in need of protection, he or she is obliged by s. 7 to help the person obtain services which “will enhance the ability of the person to care and fend adequately for himself or will protect the person from abuse or neglect”.

4                                If, on the other hand, the person is unwilling to accept the Minister’s assistance, the Minister can apply to the Family Court under s. 9(3) of the Act for an order declaring the adult to be in need of protection and, where applicable, obtain a protective intervention order.  Section 9(3)(c) of the Act provides that if, after a hearing, the court is satisfied that the individual is an adult in need of protection and mentally incapable of deciding whether to accept the Minister’s assistance, the court “may, where it appears to the court to be in the best interest of that person, make an order authorizing the Minister to provide the adult with services, including placement . . ., which will enhance the ability of the adult to care and fend adequately for himself or . . . protect the adult from abuse or neglect”.

5                                The woman who is the subject of these proceedings, J.J., is in her mid-thirties.  She was in institutional care at the Nova Scotia Hospital since December 1998.  On March 23, 1999, she was found to be an adult in need of protection under s. 9 by Legere J. of the Family Court.  The court took into account a number of factors, including her “marked cognitive impairment”, her impulsive and violent behaviour, and the fact that she had little or no insight into her medical condition or the consequences of failing to take her medication.  There was evidence of threats, including threats with a knife, a bomb threat and harassment; frequent calls to ambulance and fire departments for assistance; setting her hair and coat on fire to gain attention; violent behaviour towards others; and a history of being evicted from apartments.

6                                Because she was considered to be a risk to herself and others, Legere J. found that Ms. J. could not live on her own or with others without strict conditions of supervision and support.

7                                A plan of care was proposed to the court, on consent, placing Ms. J. in her own apartment for a trial period with a minimum of eight hours of daily supervision.  In addition, there was to be a standing order for committal to the Nova Scotia Hospital in the event of a breach of the plan, including her refusal to take medication.  She agreed to the required supervision and undertook to take her medication on a regular basis, recognizing that failure to do so would result in her being returned to the hospital. Among these and other provisions, the March 31, 1999 consent order authorized the Minister to provide Ms. J. with services that would “enhance [her] ability . . . to care and fend adequately for herself”, specifically supervision in her own apartment. 

8                                Legere J. endorsed the plan, directing that a copy of the order be given to the police department, to the Nova Scotia Hospital admissions department, as well as to other individuals. The order was renewed several times.

9                                 The placement never occurred because funding was not approved for the supervising personnel.  As a result, Ms. J. remained an in-patient at the Nova Scotia Hospital.

10                            On September 1, 2000, the Minister sought a variation order removing the specific placement provisions in the original order and authorizing a new plan of care which called for Ms. J. to be placed in a facility located outside the Halifax Regional Municipality.

11                            Legere J., in careful and extensive reasons, concluded that the Minister’s proposal to place Ms. J. in a facility outside the Halifax region was contrary to her welfare and would not enhance her ability to care and fend for herself: (2002), 202 N.S.R. (2d) 362, 2002 NSSF 19.  As a result, while renewing the order authorizing the Minister to provide Ms. J. with services, including placement in a facility, Legere J. ordered that:

. . . such placement shall not include the plan proposed by the Minister before the court, which plan required placement in [a Regional Rehabilitation Centre] Institution outside of the [Halifax] region . . . .

12                            On appeal by the Minister, Roscoe J.A., writing for a unanimous court (Freeman and Hamilton JJ.A.), concluded that Legere J. had exceeded her jurisdiction by prohibiting the Minister from placing Ms. J. outside the Halifax region: (2003), 212 N.S.R. (2d) 193, 2003 NSCA 25.  The Court of Appeal accepted the Minister’s argument that the legislative scheme limited the court’s role in s. 9(3)(c) to determining whether the person was an adult in need of protection and, if so, whether it was in that adult’s best interests for the court to authorize the Minister to provide services.  Having determined that the person’s best interests require the state’s services, the Family Court’s function, the Court of Appeal concluded, is restricted to determining which of the plans submitted to the court, including plans presented by families or third parties, should be endorsed.  If the court is provided with only one plan, the court’s jurisdiction is limited simply to accepting or vetoing it.

13                            In the case of Ms. J., that meant that the only choice available to the Family Court was to decide whether to approve the Minister’s plan to have her placed in a facility outside Halifax or to approve no plan at all.

14                            Ms. J. appealed and obtained a stay from Bateman J.A.: (2003), 215 N.S.R. (2d) 354, 2003 NSCA 71.  For the reasons that follow, I would allow the appeal.

Analysis

15                            This appeal centers on the Family Court’s jurisdiction under s. 9(3)(c) of the Adult Protection Act of Nova Scotia to impose terms and conditions on plans proposed by the Minister for a vulnerable adult’s care.  The following provisions of the Act are relevant to the interpretive exercise:

2 The purpose of this Act is to provide a means whereby adults who lack the ability to care and fend adequately for themselves can be protected from abuse and neglect by providing them with access to services which will enhance their ability to care and fend for themselves or which will protect them from abuse or neglect.

3 In this Act,

. . .

(b) “adult in need of protection” means an adult who, in the premises where he resides,

(i) is a victim of physical abuse, sexual abuse, mental cruelty or a combination thereof, is incapable of protecting himself therefrom by reason of physical disability or mental infirmity, and refuses, delays or is unable to make provision for his protection therefrom, or

(ii) is not receiving adequate care and attention, is incapable of caring adequately for himself by reason of physical disability or mental infirmity, and refuses, delays or is unable to make provision for his adequate care and attention;

7 Where, after an assessment, the Minister is satisfied that a person is an adult in need of protection, the Minister shall assist the person, if the person is willing to accept the assistance, in obtaining services which will enhance the ability of the person to care and fend adequately for himself or will protect the person from abuse or neglect.

9 (1) Where on the basis of an assessment made pursuant to this Act the Minister is satisfied that there are reasonable and probable grounds to believe a person is an adult in need of protection, he may apply to a court for an order declaring the person to be an adult in need of protection and, where applicable, a protective intervention order.

. . .

(3) Where the court finds, upon the hearing of the application, that a person is an adult in need of protection and either

(a) is not mentally competent to decide whether or not to accept the assistance of the Minister; or

(b) is refusing the assistance by reason of duress,

the court shall so declare and may, where it appears to the court to be in the best interest of that person,

(c) make an order authorizing the Minister to provide the adult with services, including placement in a facility approved by the Minister, which will enhance the ability of the adult to care and fend adequately for himself or which will protect the adult from abuse or neglect;

. . .

(6) An application to vary, renew or terminate an order made pursuant to subsection (3) may be made by the Minister, the adult in need of protection or an interested person on his behalf, or a person named in a protective intervention order upon notice of at least ten days to the parties affected which notice may not be given in respect of a protective intervention order earlier than three months after the date of the order.

(7) An order made pursuant to subsection (3) may be varied, renewed or terminated by the court where the court is satisfied that it is in the best interests of the adult in need of protection.

. . .

12 In any proceeding taken pursuant to this Act the court or judge shall apply the principle that the welfare of the adult in need of protection is the paramount consideration.

16                            The interpretation to be given to s. 9(3)(c) of the Act must be consistent with the Act’s purpose as set out in s. 2:  to provide adults who cannot protect or care for themselves with access to services which are in their best interests and will enhance their ability either to look after or protect themselves.  The governing consideration, found in s. 12, is the welfare of the adult. Responsibility for ensuring the welfare and best interests of the vulnerable adult is legislatively assigned to the Family Court.

17                            The legislative scheme recognizes that a review is required of the state’s decisions which may, however well intentioned, be incompatible with the best interests of those adults who have lost the right to make decisions for themselves. 

18                            After declaring an adult to be in need of protection under either s. 9(3)(a) or (b), the court is given the discretion under s. 9(3)(c) to authorize the Minister to provide services in the adult’s best interests, including placement in a government-approved facility, that will enhance his or her ability to care for or protect himself or herself.

19                            This means that the court is not only the gatekeeper to state intervention, it is also, having approved the adult’s loss of autonomy, responsible for assessing whether the services to be provided by the state are consistent with the adult’s welfare and best interests.

20                            While it is true that the Minister, and not the Family Court, is responsible for developing plans for a vulnerable adult, this does not mean that the Minister can unilaterally dictate the nature of the services or placement.  The Act assigns to the court the responsibility to authorize only those services that are in the best interests of the adult because they “will enhance the ability of the adult to care and fend adequately for himself or which will protect the adult from abuse or neglect”. It is inherent in that obligation that the court be able to assess whether those proposed services comply with the requirements in s. 9(3)(c).  This in turn requires the court to be able to indicate to the Minister what aspect of the plan the court, as the statutorily designated guardian of the adult’s welfare, finds acceptable or unacceptable based on whether it meets the statutory test. 

21                            To meaningfully fulfil its statutory duty to measure the proposed services against the best interests standard, the court’s jurisdiction must of necessity include the ability to amend proposals suggested by the Minister. That in turn means that in putting the Minister’s plan on one scale and the adult’s welfare on the other, the court must be able to attach reasonable terms and conditions to the Minister’s suggestions (see Nova Scotia (Minister of Community Services) v. L.K. (1991), 107 N.S.R. (2d) 377 (Fam. Ct.), at paras. 62-63, per Daley J.F.C.).  It makes no sense to give a court the jurisdiction to assess the Minister’s plan without including in that authority the ability to refine the government’s intervention to ensure legislative compliance.

22                            The Minister’s argument that the court’s ability under s. 9(3)(c) is limited to a mere veto or approval power gives the court no other option, when confronted with a plan inconsistent with the adult’s welfare, than to leave the adult with no services until the Minister produces a plan the court is prepared to approve. This deprives the court of its supervisory function.

23                            The significance of independent judicial review of state action when a vulnerable adult has been deprived, at the instigation of the state, of the right to function autonomously, cannot be overstated. The court’s statutorily assigned supervisory role emerges from the adult’s vulnerability.  The corollary of a judicial determination that an adult is in need of protection is a corresponding limitation on that adult’s autonomous decision making and liberty.  It is the function of the court to monitor the scope of that limitation.  The legislation must, therefore, be interpreted in a way which acknowledges the intrusiveness of the determination and offers muscular protection from state intervention incompatible with the adult’s welfare. Section 9(3)(c) should not be applied in a way that frustrates that responsibility.

24                            In assessing the terms and conditions it considers most conducive to the adult’s welfare under s. 12 and best interests under s. 9(3)(c), the court is of course obliged to consider the availability of services and the Minister’s capacity to provide them.  However, having made the decision to take responsibility for the adult, the state is obliged to develop a plan in that adult’s best interests.

25                            This was a variation application by the Minister.  The onus was on the Minister to prove to the court that a change to the original order was in the best interests of the adult.  Legere J. found that the onus was met and varied the order to expand the Minister’s placement options for Ms. J.  In attaching the condition that any  placement occur in Halifax, Legere J. did not trespass beyond her jurisdictional borders.

26                            Accordingly, I would allow the appeal. No further relief is sought by the parties.

Appeal allowed.

Solicitor for the appellant:  Dalhousie Legal Aid, Halifax.

Solicitor for the respondent:  Nova Scotia Department of Justice, Halifax.

Solicitor for the intervener the Advocacy Centre for the Elderly:  Advocacy Centre for the Elderly, Toronto.

Solicitor for the interveners People First of Canada and Canadian Association for Community Living:  Legal Resource Centre for Persons with Disabilities, Toronto.