Nova Scotia (Minister of Health) v. J.J., (2005) 231 N.S.R.(2d) 1 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 18, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 231 N.S.R.(2d) 1 (SCC);2005 SCC 12;250 DLR (4th) 1;331 NR 103;231 NSR (2d) 1;[2005] 1 SCR 177

N.S. v. J.J. (2005), 231 N.S.R.(2d) 1 (SCC);

 733 A.P.R. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2005] N.S.R.(2d) TBEd. MR.001

J.J. (appellant) v. Nova Scotia (Minister of Health) (respondent) and Advocacy Centre for the Elderly, Canadian Association for Community Living and People First of Canada (intervenors)

(29717; 2005 SCC 12; 2005 CSC 12)

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

Supreme Court of Canada

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

March 18, 2005.

Summary:

J.J. was found to be an adult in need of protection in 1999 (Adult Protection Act, s. 3(b)(ii)). The order, by consent, authorized the Minister to place J.J. in a facility approved by the Minister to enhance her ability to care for herself, specifically supervision in her own apartment including hospitalizations of short duration as directed by her support team or an Adult Protection worker. The order was renewed four times. The placement never took place and J.J. remained in institutionalized care. The Minister applied to vary the order, specifically to remove the specific placement provision clause to permit placement in a facility approved by the Minister. J.J., her support team and her physician opposed the variation. In the first phase of the hearing, the issue was the court's jurisdiction in placement matters, particularly whether the court could impose conditions on ministerial intervention under the Act.

The Nova Scotia Supreme Court, Family Division, in a judgment reported (2001), 193 N.S.R.(2d) 13; 602 A.P.R. 13, held that although the court lacked jurisdiction to order a particular placement, the court could prevent a placement that was contrary to the adult's best interests and did not enhance their life circumstances. The second phase of the hearing concerned the respective plans of care of the Minister (institutionalization in residential community outside Halifax area), J.J. (independent apartment living) and the hospital (small options home in the community), to determine which plan best reflected J.J.'s best interests.

The Nova Scotia Supreme Court, Family Division, in a judgment reported (2002), 202 N.S.R.(2d) 362; 632 A.P.R. 362, held that independent apartment living was unsuitable and the likelihood of it being successful in the near future was minimal. The Minister's plan to move J.J. to another community was not in her best interests and would not enhance her life. Accordingly, that plan was prohibited. Community placement had not been properly evaluated. The Minister appealed, submitting that, inter alia, the trial judge exceeded her jurisdiction by limiting placement to a facility in Halifax.

The Nova Scotia Court of Appeal, in a judgment reported (2003), 212 N.S.R.(2d) 193; 665 A.P.R. 193, allowed the appeal on the ground that the trial judge lacked jurisdiction under the Act to restrict placement to facilities within the Halifax Regional Municipality. J.J. appealed.

The Supreme Court of Canada allowed the appeal. The trial judge did not exceed her jurisdiction in attaching a condition that any placement occur in Halifax. Section 9(3)(c) of the Act provided the jurisdiction to impose terms and conditions.

Guardian and Ward - Topic 818

Public trustee or guardian - Appointment - Child or adult in need of protection - Protective order - An adult protection order provided for a specific placement (independent apartment living with supervision) - That placement never occurred and the adult remained institutionalized - The Minister sought to vary the order to remove the provision to permit placement in a facility approved by the Minister - The Minister planned to institutionalize the adult in a facility outside the Halifax area -The adult and her support workers and doctor opposed the plan, suggesting alternative plans - The trial judge held that while she lacked jurisdiction to order a specific placement, she could prohibit a placement that was not in the adult's best interests and did not enhance the adult's ability to care for herself - The trial judge prohibited the Minister from placing the adult in an institution outside Halifax Regional Municipality as being contrary to the adult's best interests - The Nova Scotia Court of Appeal allowed the appeal on the ground that the court lacked jurisdiction under the Adult Protection Act to order placement at any specific facility or to restrict placement to a certain geographical area - The Supreme Court of Canada restored the trial judge's order - Section 9(3)(c) of the Adult Protection Act gave the trial judge jurisdiction to impose terms and conditions on plans proposed by the Minister for the care of an adult in need of protection.

Guardian and Ward - Topic 1362

Supervision of the guardian by the courts -Practice - Jurisdiction - [See Guardian and Ward - Topic 818 ].

Cases Noticed:

Nova Scotia (Minister of Community Services) v. L.K. (1991), 107 N.S.R.(2d) 377; 290 A.P.R. 377 (Fam. Ct.), refd to. [para. 21].

Statutes Noticed:

Adult Protection Act, R.S.N.S. 1989, c. 2, sect. 2, sect. 3(b), sect. 7, sect. 9(1), sect. 9(3), sect. 9(6), sect. 9(7), sect. 12 [para. 15].

Counsel:

Claire McNeil and Susan Young, for the appellant;

Edward A. Gores, for the respondent;

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

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

Solicitors of Record:

Dalhousie Legal Aid, Halifax, N.S., for the appellant;

Nova Scotia Department of Justice, Halifax, N.S., for the respondent;

Advocacy Centre for the Elderly, Toronto, Ontario, for the intervenor, Advocacy Centre for the Elderly;

Legal Resource Centre for Persons with Disabilities (ARCH), Toronto, Ontario, for the intervenor, People First of Canada and the Canadian Association for Community Living.

This appeal was heard on November 4, 2004, before McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.

On March 18, 2005, Abella, J., delivered the following judgment in both official languages for the Supreme Court of Canada.