R.P. et al. v. Director of Child, Youth and Family Enhancement (Alta.), 2015 ABCA 171

• Judge: Martin, Watson and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 30, 2015
• Citations: 2015 ABCA 171;(2015), 600 A.R. 262

R.P. v. CFS (2015), 600 A.R. 262; 645 W.A.C. 262 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MY.084

R.P. and M.P. (respondents/plaintiffs/applicants) v. Alberta (Director of Child, Youth and Family Enhancement)

(appellant/defendant/respondent)

(1503-0012-AC; 2015 ABCA 171)

Indexed As: R.P. et al. v. Director of Child, Youth and Family Enhancement (Alta.)

Alberta Court of Appeal

Martin, Watson and Bielby, JJ.A.

May 19, 2015.

Summary:

The Director of Child, Youth and Family Enhancement decided to remove S.S., a four year old child, from the foster home in which she had resided since shortly after birth and place her with her maternal grandparents. The foster parents appealed. An appeal panel remitted the decision to the Director for further consideration under s. 119(2) of the Child, Youth and Family Enhancement Act. The Director maintained the decision. The foster parents applied for judicial review.

The Alberta Court of Queen's Bench, in a decision reported at [2015] A.R. TBEd. JA.032, allowed the application. The Director appealed.

The Alberta Court of Appeal dismissed the appeal. The matter was remitted to the Director for reconsideration in light of an attachment assessment and on giving due deference to the appeal panel's findings.

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 550

Hearing and decision - Decisions of the tribunal - Reasons for decisions - Effect of lack of - [See fourth Guardian and Ward - Topic 876 ].

Administrative Law - Topic 2155

Natural justice - Administrative decisions or findings - Effect of failure of tribunal or official to give reasons for decisions (incl. sufficiency of reasons) - [See fourth Guardian and Ward - Topic 876 ].

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Guardian and Ward - Topic 944 ].

Guardian and Ward - Topic 803

Public trustee or guardian - General - Legislation - [See first and second Guardian and Ward - Topic 876 ].

Guardian and Ward - Topic 876

Public trustee or guardian - Powers - Exercise of - Appeals - At issue on this appeal was the scope of the Director of Child, Youth and Family Enhancement's obligations where an appeal panel remitted the Director's decision to the Director for "further consideration" under s. 119(2) of the Child, Youth and Family Enhancement Act - The Alberta Court of Appeal discussed the jurisdiction of the appeal panel - The court rejected the Director's assertion that the lack of express direction in the Act meant that the appeal panel was not intended to make findings of fact or arrive at conclusions based on them - While the Act did not specifically state what the appeal panel could or must do in hearing an appeal, certain inferences could be drawn - The legislature intended the right to appeal to an appeal panel to have a purpose - The hearing of evidence by the appeal panel was presumed to be aimed at accomplishing the goal of the legislation, which was the protection of a child in need of intervention - That would best be achieved by required the appeal panel to make findings of fact and arrive at a decision, rather than merely producing a transcript for the Director to review or not - Therefore, where an appeal panel chose not to confirm the Director's decision, the appeal panel was required to make findings of fact and arrive at a decision - Before arriving at its decision, the appeal panel had to (1) make findings of fact and give express reasons for making them; (2) expressly apply the findings to each of the factors in s. 2 of the Act, relating to the child's best interests; and (3) expressly weigh each of the factors - See paragraphs 37 to 53.

Guardian and Ward - Topic 876

Public trustee or guardian - Powers - Exercise of - Appeals - At issue on this appeal was the scope of the Director of Child, Youth and Family Enhancement's obligations where an appeal panel remitted the Director's decision to the Director for "further consideration" under s. 119(2) of the Child, Youth and Family Enhancement Act - The Alberta Court of Appeal rejected the Director's assertion that, because s. 119(2) imposed no express limitations on the Director's conduct or discretion on receipt of a direction for further consideration, the Director was not obliged to take the appeal panel's findings of fact or decision into account, but was free to ignore both - There would be no purpose served in requiring an appeal panel to hear evidence and make findings and conclusions if the Director was entitled to ignore them - Rather, requiring the Director to expressly consider those findings and adopt them unless the Director concluded that the appeal panel's decision was unreasonable would interpret the Director's obligations under s. 119(2) as part of a rational, internally consistent framework of parts working together dynamically toward the intended goal of protecting vulnerable children - This was the most plausible and practical interpretation of the statute, in keeping with the legislative intent - The outcome was reasonable and just - The contrary interpretation rendered the appeal panel useless - See paragraphs 54 to 68.

Guardian and Ward - Topic 876

Public trustee or guardian - Powers - Exercise of - Appeals - At issue on this appeal was the scope of the Director of Child, Youth and Family Enhancement's obligations where an appeal panel remitted the Director's decision to the Director for "further consideration" under s. 119(2) of the Child, Youth and Family Enhancement Act - The Alberta Court of Appeal held that the Director was entitled to arrive at a different decision from the appeal panel only after the following: "expressly considering the fact findings, conclusions and decision made by it; expressly addressing the interaction of those findings and conclusions with any relevant new evidence which has come to his attention since the Appeal Panel referred the matter back to him; expressly considering each of the s. 2 factors in the context of all of the evidence and expressly weighing each such factor in the context of the others; giving articulate clear, defensible and acceptable reasons for making findings or arriving at any conclusions contrary to those reached by the Appeal Panel, including in relation to any new evidence before him, which was not before that panel; and arriving at a reasonable decision of his own." - Otherwise, the Director was required to defer to a "reasonable and supportable decision" of an appeal panel - The court set out a number of specific reasons supporting this interpretation of s. 119(2) - See paragraphs 69 to 72.

Guardian and Ward - Topic 876

Public trustee or guardian - Powers - Exercise of - Appeals - The Director of Child, Youth and Family Enhancement decided to remove S.S., a four year old child, from the foster home in which she had resided since shortly after birth and place her with her maternal grandparents - The foster parents appealed - An appeal panel remitted the decision to the Director for further consideration under s. 119(2) of the Child, Youth and Family Enhancement Act - The Director maintained the decision - Ouellette, J., allowed the foster parents' application for judicial review - The Alberta Court of Appeal dismissed the Director's appeal - The Director adopted an unreasonable approach toward decision-making by failing to explicitly engage with the appeal panel's findings which resulted in a decision that was contrary to the evidence and based on secondary concerns - The reviewing judge concluded that the Director had prioritized the trauma that S.S. could possibly experience in the future from the loss of her connection with her aboriginal culture while failing to address the trauma she would experience from being removed from the only home she had ever known to live with an aboriginal family with whom she had relatively little prior contact - An administrative decision-maker's failure to consider a relevant factor when determining a child's best interests rendered the decision unreasonable - This was not simply a deficiency in the written reasons - Deficient or flawed reasons had to be distinguished from no reasons - To the extent that the Director was silent on certain issues, the court could not invent the analysis that the Director could have provided - The matter had to be remitted to the Director for reconsideration in light of an attachment assessment and on giving due deference to the appeal panel's findings - See paragraphs 73 to 84.

Guardian and Ward - Topic 944

Public trustee or guardian - Appeals to courts (incl. judicial review) - Nature and scope of - The Director of Child, Youth and Family Enhancement decided to remove S.S., a four year old child, from the foster home in which she had resided since shortly after birth and place her with her maternal grandparents - The foster parents appealed - An appeal panel remitted the decision to the Director for further consideration under s. 119(2) of the Child, Youth and Family Enhancement Act - The Director maintained the decision - Ouellette, J., allowed the foster parents' application for judicial review - The Director appealed - The Alberta Court of Appeal discussed the standard of review, noting that all of the parties accepted that reasonableness was the standard of review of the Director's reconsideration decision - While reasonableness was a single standard, it took its colour from the context of the particular type of decision - A statutory provision might allow for multiple reasonable interpretations - In the context of judicial review, a court was to prefer the reasonable or plausible interpretation proffered by the administrative decision-maker - Alternatively, a statutory provision might be amenable to only one reasonable interpretation, the corollary being that any other interpretation would necessarily be unreasonable - See paragraphs 29 to 36.

Guardian and Ward - Topic 948

Public trustee or guardian - Appeals to courts (incl. judicial review) - Powers of appellate court - [See fourth Guardian and Ward - Topic 876 ].

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament or legislature - [See first and second Guardian and Ward - Topic 876 ].

Statutes - Topic 1402

Interpretation - Construction where meaning is not plain - General principles - Intention of legislature - [See first and second Guardian and Ward - Topic 876 ].

Statutes - Topic 1404

Interpretation - Construction where meaning is not plain - General principles - Adoption of reasonable and just meaning - [See second Guardian and Ward - Topic 876 ].

Statutes - Topic 2280

Interpretation - Presumptions and rules in aid - Against surplusage - [See second Guardian and Ward - Topic 876 ].

Statutes - Topic 2603

Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from whole of section or statute - [See first and second Guardian and Ward - Topic 876 ].

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. 26].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 31].

Canadian National Railway Co. v. Canada (Attorney General) et al., [2014] 2 S.C.R. 135; 458 N.R. 150; 2014 SCC 40, refd to. [para. 31].

Kikino Metis Settlement v. Metis Settlements Appeal Tribunal (2013), 544 A.R. 251; 567 W.A.C. 251; 2013 ABCA 151, refd to. [para. 32].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 34].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al., [2012] 1 S.C.R. 364; 428 N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, refd to. [para. 34].

Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5; 425 N.R. 22; 316 B.C.A.C. 1; 537 W.A.C. 1; 2012 SCC 2, refd to. [para. 34].

Canadian Human Rights Commission v. Canada (Attorney General) et al. (2013), 444 N.R. 120; 2013 FCA 75, refd to. [para. 34].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 35].

New Brunswick Liquor Corp. v. Small (2012), 390 N.B.R.(2d) 203; 1011 A.P.R. 203; 351 D.L.R.(4th) 141; 2012 NBCA 53, refd to. [para. 35].

Allen v. Workplace Health, Safety and Compensation Review Division et al. (2014), 357 Nfld. & P.E.I.R. 1; 1109 A.P.R. 1; 379 D.L.R.(4th) 271; 2014 NLCA 42, refd to. [para. 35].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 36].

1694192 Alberta Ltd. v. Subdivision and Development Appeal Board (Lac La Biche (County)) et al. (2014), 584 A.R. 112; 623 W.A.C. 112; 378 D.L.R.(4th) 349; 2014 ABCA 319, refd to. [para. 36].

T.W. et al. v. Director of Child, Youth and Family Enhancement (Alta.) et al. (2009), 446 A.R. 339; 442 W.A.C. 339; 2009 ABCA 25, refd to. [para. 47].

Québec v. Carrières Ste-Thérèse ltée, [1985] 1 S.C.R. 831; 59 N.R. 391, refd to. [para. 48].

Alberta (Minister of Education) et al. v. Canadian Copyright Licensing Agency et al., [2012] 2 S.C.R. 345; 432 N.R. 134; 2012 SCC 37, refd to. [para. 48].

Thomson v. Canada (Minister of Agriculture), [1992] 1 S.C.R. 385; 133 N.R. 345; 89 D.L.R.(4th) 218, dist. [para. 63].

Saliaj v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 284; 39 Imm. L.R.(3d) 249; 2004 FC 499, refd to. [para. 76].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 80].

Construction Labour Relations v. Driver Iron Inc. - see Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al.

Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al., [2012] 3 S.C.R. 405; 437 N.R. 202; 539 A.R. 17; 561 W.A.C. 17; 2012 SCC 65, refd to. [para. 80].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 81].

EllisDon Corp. v. Ontario Sheet Metal Workers' and Roofers' Conference et al. (2014), 327 O.A.C. 113; 123 O.R.(3d) 253; 2014 ONCA 801, refd to. [para. 82].

L.E. et al. v. Child, Youth and Family Enhancement (Alta.) Appeal Panel et al. (2013), 559 A.R. 104; 2013 ABQB 161, refd to. [para. 86].

Statutes Noticed:

Child, Youth and Family Enhancement Act, R.S.A. 2000, c. C-12, sect. 2 [para. 47]; sect. 119(1), sect. 119(1.1) [para. 14]; sect. 119(2) [para. 39]; sect. 120 [para. 14].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (6th Ed. 2014), pp. 7 [para. 45]; 8 to 10 [para. 68]; 211 [para. 48]; 337 [para. 51].

Counsel:

A.C. Kellett, for the respondents (plaintiffs/ applicants);

T.B. Kuehn, for the appellant (defendant/respondent);

C.A. Murphy, for the Child.

This appeal was heard on March 30, 2015, by Martin, Watson and Bielby, JJ.A., of the Alberta Court of Appeal. On May 19, 2015, Bielby, J.A., delivered the following reasons for judgment reserved for the court.