P.T. et al. v. New Brunswick (Minister of Social Development) et al., (2011) 382 N.B.R.(2d) 95 (FD)

• Judge: Walsh, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: November 14, 2011
• Jurisdiction: New Brunswick
• Citations: (2011), 382 N.B.R.(2d) 95 (FD);2011 NBQB 318

P.T. v. N.B. (2011), 382 N.B.R.(2d) 95 (FD);

  382 R.N.-B.(2e) 95; 988 A.P.R. 95

MLB headnote and full text

Sommaire et texte intégral

Temp. Cite: [2011] N.B.R.(2d) TBEd. NO.029

Renvoi temp.: [2011] N.B.R.(2d) TBEd. NO.029

P.T. and S.T. (applicants) v. The Department and Minister of Social Development for the Province of New Brunswick and J.M.N. (respondents)

(FDSJ-341-11; FDSJ-699-11; 2011 NBQB 318; 2011 NBBR 318)

Indexed As: P.T. et al. v. New Brunswick (Minister of Social Development) et al.

Répertorié: P.T. et al. v. New Brunswick (Minister of Social Development) et al.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Saint John

Walsh, J.

November 14, 2011.

Summary:

Résumé:

A child was placed with the applicants two days after birth, with the de facto consent of the natural parents and to the knowledge of the Minister of Social Development. The Family Services Act required the Minister to approve the "suitability" of a private adoption. The Minister investigated and ultimately determined that the applicants were not "suitable". Consequently, the natural mother revoked her consent to the adoption placement and wanted custody of her son. The child remained with the applicants (by reason of a temporary injunction earlier issued by the court). They applied to have the Minister's decision removed into court and quashed.

The New Brunswick Court of Queen's Bench, Family Division, allowed the application and issued the following order: "1. The Court declares the Decision of the Minister of Social Development dated July 18, 2011 removed into Court and quashed; 2. The matter of 'suitability' within the meaning of Part V of the Family Services Act is remitted for a decision to a differently constituted 'Placement Suitability Conference', composed of members outside the Department of Social Development's Saint John Region; and the Court further directs that this newly constituted 'Placement Suitability Conference' is not to consult or take directions regarding their decision from any employee of the Department of Social Development involved in the previous decision making, without further order of the Court; 3. The determination as to the 'suitability' of the applicants is to be made in a manner consistent with the Court's statutory interpretation of the legislative framework, as set out in these reasons." The court also made incidental orders.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Administrative Law - Topic 224

The hearing and decision - Right to be heard - What constitutes being heard - A child was placed with the applicants two days after birth, with the de facto consent of the natural parents and to the knowledge of the Minister of Social Development - The Family Services Act required the Minister to approve the "suitability" of a private adoption - The Minister investigated and ultimately determined that the applicants were not "suitable" in light of a "contravention" - Consequently, the natural mother revoked her consent to the adoption placement - The applicants applied to have the Minister's decision removed into court and quashed, asserting that the Minister breached the duty of fairness where they were denied the right to be heard - The New Brunswick Court of Queen's Bench, Family Division, held that "the Minister did not breach the applicants' participatory rights to be heard. What that right means in any given case must also be informed by the requirement of timeliness. The Minister has not only statutory time requirements to meet, but the child and natural parents are also waiting ... Throughout, the Minister provided ample opportunity to the applicants to provide information about themselves and their situation. The applicants 'had a meaningful opportunity to present their case fully and fairly' ... Indeed, what the employment of the outside risk assessor signifies is that the Minister enhanced the applicants' participatory rights beyond the norm. To this extent, the Minister met the procedural right to fairness. The applicants were not entitled to a right to a hearing before the final decision was made." - See paragraph 119.

Administrative Law - Topic 266

The hearing and decision - Right to a hearing - Persons not entitled to a hearing - [See Administrative Law - Topic 224 ].

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decision - Sufficiency of - A child was placed with the applicants two days after birth, with the de facto consent of the natural parents and to the knowledge of the Minister of Social Development - The Family Services Act required the Minister to approve the "suitability" of a private adoption - The Minister investigated and ultimately determined that the applicants were not "suitable" in light of a "contravention" - Consequently, the natural mother revoked her consent to the adoption placement - The applicants applied to have the Minister's decision removed into court and quashed, asserting that the Minister breached the duty of fairness where the Minister failed to provide supporting reasons for his decision - The New Brunswick Court of Queen's Bench, Family Division, quashed the Minister's decision - The Minister was statutorily required to give reasons for her decision to the applicants under s. 6(2)(a) of the Adoptive Applicant Regulations - The Minister failed in that duty - The decision contained only a "bald, vague and legally erroneous conclusionary statement" - Even if there had been no statutory requirement for reasons, the court would have found a common law requirement based on the Baker v. Canada (Minister of Citizenship and Immigration) (SCC 1999) factors - See paragraphs 120 to 128.

Administrative Law - Topic 2088

Natural justice - Constitution of the board or tribunal (considerations incl. bias) - Bias - Apprehension of - A child was placed with the applicants two days after birth, with the de facto consent of the natural parents and to the knowledge of the Minister of Social Development - The Family Services Act required the Minister to approve the "suitability" of a private adoption - The Minister investigated and ultimately determined that the applicants were not "suitable" in light of a "contravention" - Consequently, the natural mother revoked her consent to the adoption placement - The applicants applied to have the Minister's decision removed into court and quashed, asserting that the Minister breached the duty of fairness where there was a reasonable apprehension of bias - The New Brunswick Court of Queen's Bench, Family Division, quashed the Minister's decision - The applicants had not alleged that the Minister's representatives were actually biased against them - The applicants alleged that, in the totality of the circumstances, it was reasonable for them to believe that they were - The court accepted the argument - A reasonable and right minded person with knowledge of all the information disclosed in the record would think that it was more probable that the Minister's delegated authority did not, whether consciously or unconsciously, decide the question of "suitability" fairly - The court was not driven to this conclusion because the decision went against the applicants, or because the Minister made an earlier "not suitable" finding without all the information, or because the Minister was prevented from acting on that finding by the court pending the receipt of more information, or because the ensuing information was favourable to the applicants, or because no reasons for the subsequent decision were given, or because the result appeared inexplicable on its face - The court was driven to this conclusion because of all of the above - See paragraphs 129 to 132.

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - A child was placed with the applicants two days after birth, with the de facto consent of the natural parents and to the knowledge of the Minister of Social Development - The Family Services Act required the Minister to approve the "suitability" of a private adoption - The Minister investigated and ultimately determined that the applicants were not "suitable" in light of a "contravention" - Consequently, the natural mother revoked her consent to the adoption placement and wanted custody of her son - The applicants applied to have the Minister's decision removed into court and quashed, asserting that the Minister breached the duty of fairness - The New Brunswick Court of Queen's Bench, Family Division, held that "[a]lthough the Minister's primary duty was to the child, I am of the opinion that the Minister had a secondary duty, to the applicants - to be fair to them, at least to the extent that it did not impair the Minister's duty to the child. There are three reasons why. The first is that the applicants' interests ... were in jeopardy of being deeply affected by the Minister's decision. Second, ... a duty of fairness to the applicants benefits the child. And third, the duty of fairness is a relative concept, dependant on a contextual assessment." - See paragraphs 101 and 102.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Administrative Law - Topic 224 , Administrative Law - Topic 549 , Administrative Law - Topic 2088 and Administrative Law - Topic 2264 ].

Administrative Law - Topic 2272

Natural justice - The duty of fairness - Circumstances or powers to which duty applies (inc. extent of duty) - A child was placed with the applicants two days after birth, with the de facto consent of the natural parents and to the knowledge of the Minister of Social Development - The Family Services Act required the Minister to approve the "suitability" of a private adoption - The Minister investigated and ultimately determined that the applicants were not "suitable" in light of a "contravention" - Consequently, the natural mother revoked her consent to the adoption placement - The applicants applied to have the Minister's decision removed into court and quashed, asserting that the Minister breached the duty of fairness - The New Brunswick Court of Queen's Bench, Family Division, considered the factors in Baker v. Canada (Minister of Citizenship and Immigration) (SCC 1999) and concluded that a high degree of procedural fairness was required in these circumstances - The Minister's opinion as to "suitability" played a significant, if not crucial, part in the judicial decision making on any later application for an adoption order - The effect of the decision on the applicants and on the child were great - It was a life altering decision for everyone, including the natural parents - The parties had legitimate expectations with respect to procedural fairness - See paragraphs 103 to 118.

Family Law - Topic 1401

Adoption - General - Legislation - The New Brunswick Court of Queen's Bench, Family Division, discussed the legislative framework for the assessment of "suitability" of adoption applicants required by ss. 67(2) and 74(1) of Part V (Adoption) of the Family Services Act - See paragraphs 73 to 96.

Family Law - Topic 1401

Adoption - General - Legislation - A child was placed with the applicants two days after birth, with the de facto consent of the natural parents and to the knowledge of the Minister of Social Development - The Family Services Act required the Minister to approve the "suitability" of a private adoption - The Minister investigated and ultimately determined that the applicants were not "suitable" in light of a "contravention" - Consequently, the natural mother revoked her consent to the adoption placement - The New Brunswick Court of Queen's Bench, Family Division, quashed the Minister's decision - The Minister's decision incorporated a reference to either one of two of the contraventions described in the consent and SD Check Policy and Procedures that referred to s. 31 of the Family Services Act (FSA) - For two reasons fatal to the Minister's position on this judicial review, the reference in the Minister's decision to a "contravention" under "section 31" was an error of law, which infected the Minister's finding that the applicants were "unsuitable" as adoptive parents - The first, and most significant and obvious reason, was that these so-called criteria did not fall under the prescription of s. 67(2) of the FSA - Even on a plain, generous reading, the criteria noted in the SD Policy and Procedures document appeared as both different and/or additional to the criteria set out in Adoptive Applicant Regulations - "Standards, practices, policies, protocols and procedures created and employed within a ministerial department for guidance and consistency in the carrying out of a Minister's mandate is one thing; creating law through them is quite another. And, this is what the policy aspect of the SD Policy and Procedures document purports to do." - The second deficit was not so obvious, but just as real - Even if the criteria outlined in the SD Policy and Procedures document applied, there was no legal basis for finding that the prospective adoptive mother contravened either of those two specific criterions because of the delayed disclosure of a previous historic child protection proceeding - There was absolutely no evidence in the record that she had a court order made against her "under the Family Services Act in relation to a child's security or development under paragraph 31(1)(e) ...", nor was there any evidence in the record that she "has been found, as the result of a documented investigation under 31(2) of the Act, to endanger the security or development of a child in accordance with paragraph 31(1)(e) and had been informed, under paragraph 30(8)(b), of the findings and conclusions of the investigation" - At the highest, the inclusion of a simple reference in the decision of the "Placement Suitability Conference" to s. 31 as the "contravention" amounted to nothing but an ex post facto and legally erroneous attempt at bootstrapping into an adoption assessment what the Minister might have done (but did not do) in another legislative context (i.e. Part III (Protection Services) of the FSA) back in 2003 - 2004, when the ministerial file on the sexual assault investigation regarding the applicants' daughters was opened and then later closed - See paragraphs 41 to 72.

Droit administratif - Cote 224

Audience et décision - Droit d'être entendu - En quoi consiste le fait d'être entendu - [Voir Administrative Law - Topic 224 ].

Droit administratif - Cote 266

Audience et décision - Droit à une audience - Personnes qui n'ont pas droit à une audience - [Voir Administrative Law - Topic 266 ].

Droit administratif - Cote 549

Audience et décision - Décisions du tribunal - Motifs suffisants - [Voir Administrative Law - Topic 549 ].

Droit administratif - Cote 2088

Justice naturelle - Composition de la commission ou du tribunal (facteurs considérés y compris la partialité) - Crainte de partialité - [Voir Administrative Law - Topic 2088 ].

Droit administratif - Cote 2264

Justice naturelle - Devoir d'équité - Application - [Voir Administrative Law - Topic 2264 ].

Droit administratif - Cote 2266

Justice naturelle - Devoir d'équité - Équité procédurale - En quoi consiste - [Voir Administrative Law - Topic 2266 ].

Droit administratif - Cote 2272

Justice naturelle - Devoir d'équité - Circonstances ou pouvoirs assujettis au devoir - [Voir Administrative Law - Topic 2272 ].

Droit de la famille - Cote 1401

Adoption - Généralités - Législation - [Voir Family Law - Topic 1401 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 39].

Carter Brothers Ltd. v. Registrar of Motor Vehicles (N.B.) (2011), 377 N.B.R.(2d) 291; 972 A.P.R. 291; 2011 NBCA 81, refd to. [para. 42].

Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165; 165 N.R. 161; 71 O.A.C. 81, refd to. [para. 74].

GreenIsle Environmental Inc. v. New Brunswick (Minister of the Environment and Local Government) (2007), 311 N.B.R.(2d) 161; 803 A.P.R. 161; 2007 NBCA 9, refd to. [para. 78].

Campbell v. Royal Insurance Co. of Canada (1991), 115 N.B.R.(2d) 140; 291 A.P.R. 140 (C.A.), refd to. [para. 85].

Beson et al. v. Director of Child Welfare et al., [1982] 2 S.C.R. 716; 44 N.R. 602; 39 Nfld. & P.E.I.R. 246; 111 A.P.R. 246; 142 D.L.R.(3d) 20, refd to. [para. 95].

New Brunswick (Attorney General) v. Dominion of Canada General Insurance Co. (2010), 366 N.B.R.(2d) 105; 942 A.P.R. 105; 2010 NBCA 82, refd to. [para. 100].

New Brunswick (Attorney General) v. Pembridge Insurance Co. et al. (2011), 368 N.B.R.(2d) 134; 949 A.P.R. 134; 2011 NBCA 2, refd to. [para. 100].

Nova Scotia (Minister of Community Services) v. N.N.M. and R.D.M. (2008), 268 N.S.R.(2d) 109; 857 A.P.R. 109; 57 R.F.L.(6th) 1 (C.A.), refd to. [para. 100].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 101].

New Brunswick v. Human Rights Commission (N.B.) (2010), 360 N.B.R.(2d) 283; 930 A.P.R. 283; 2010 NBCA 40, refd to. [para. 103].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 104].

H.C. v. New Brunswick (Minister of Family and Community Services) (2003), 263 N.B.R.(2d) 106; 689 A.P.R. 106; 2003 NBQB 196, refd to. [para. 105].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 129].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 129].

Canada (Attorney General) v. Mowat (2011), 422 N.R. 248; 2011 SCC 53, refd to. [para. 134].

Doucet et al. v. Spielo Manufacturing Inc. et al. (2011), 372 N.B.R.(2d) 1; 961 A.P.R. 1; 2011 NBCA 44, refd to. [para. 139].

Rademaker v. Rademaker (2002), 251 N.B.R.(2d) 177; 654 A.P.R. 177; 2002 NBCA 47, refd to. [para. 139].

Maltais v. Port of Dalhousie Inc. (2011), 377 N.B.R.(2d) 312; 972 A.P.R. 312; 2011 NBCA 84, refd to. [para. 142].

Statutes Noticed:

Adoptive Application Regulations, 85-14, sect. 3(1) [para. 52]; sect. 6 [para. 56].

Family Services Act, S.N.B. 1980, c. F-2.2, sect. 67(1), sect. 67(2) [para. 9]; sect. 73(2), sect. 73(3) [para. 10]; sect. 74(3) [para. 11]; sect. 74(1) [para. 14]; sect. 74(2) [para. 35].

Authors and Works Noticed:

Dreidger, Elmer A., Construction of Statutes (2nd Ed. 1983), pp. 3 [para. 96]; 37 [para. 87]; 87 [para. 74]; 506, 507 [para. 92].

Sullivan, Ruth, Sullivan and Dreidger, Construction of Statutes (4th Ed. 2008), p. 21 [para. 86].

Counsel:

Avocats:

Tracy Peters and Adele Savoie, for the applicants;

Maya Hamou and Richard Williams, for the respondent, Province of New Brunswick;

Justin G. Roherty, for the respondent, J.M.N.

This application was heard on October 27 and 28, 2011, by Walsh, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Saint John, who delivered the following decision on November 14, 2011.