T.D. v. Director of Child and Family Services, 2015 MBCA 74

• Judge: Steel, Monnin and Cameron, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 04, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 74;(2015), 323 Man.R.(2d) 29 (CA)

T.D. v. CFS (2015), 323 Man.R.(2d) 29 (CA);

      657 W.A.C. 29

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. SE.007

T.D. (applicant/respondent) v. The Director of Child and Family Services (respondent/applicant)

(AH 14-30-08124; AH 14-30-08125; 2015 MBCA 74)

Indexed As: T.D. v. Director of Child and Family Services

Manitoba Court of Appeal

Steel, Monnin and Cameron, JJ.A.

August 5, 2015.

Summary:

The Manitoba Court of Queen's Bench dismissed an application by the Director of Child and Family Services (CFS) under s. 19 of the Child and Family Services Act to have the respondent registered on the Child Abuse Registry. Section 19(3.7) of the Act specified that the Court's decision "is final and not subject to appeal." CFS applied to quash the dismissal by way of certiorari, and appealed as to costs ordered against it.

The Manitoba Court of Appeal dismissed the main appeal because of lack of jurisdiction. The Court dismissed the appeal as to costs, considering that the main appeal had failed, CFS had not obtained leave to appeal the costs order, and the respondent was not represented by counsel upon appeal.

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.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction) - [See third Infants - Topic 3350 ].

Courts - Topic 2101

Jurisdiction - Appellate jurisdiction - General - [See second Infants - Topic 3350 ].

Courts - Topic 7766

Provincial courts - Manitoba - Court of Appeal - Jurisdiction - Appeals from Court of Queen's Bench - [See second Infants - Topic 3350 ].

Courts - Topic 7768

Provincial courts - Manitoba - Court of Appeal - Jurisdiction - Respecting prerogative writs - [See first Infants - Topic 3350 ].

Courts - Topic 7770

Provincial courts - Manitoba - Court of Appeal - Jurisdiction - Inherent - [See third Infants - Topic 3350 ].

Infants - Topic 3349

Child abuse - Child abuse register - Evidence and proof - [See first Infants - Topic 3350 ].

Infants - Topic 3350

Child abuse - Child abuse register - Appeals - A judge dismissed an application by the Director of Child and Family Services (CFS) under s. 19 of the Child and Family Services Act to have the respondent registered on the Child Abuse Registry - Section 19(3.7) of the Act specified that the Court's decision "is final and not subject to appeal." - CFS applied to quash the dismissal by way of certiorari - The Manitoba Court of Appeal held that the Court could not issue certiorari - "First, the section of the Act is clear that there is to be no appeal to our Court from the decision. ... Second, an order of certiorari cannot issue against the decision of a superior court judge. Even if I accepted that such a prerogative writ could issue against a superior court judge in exceptional circumstances such as the protection of children, I do not see such a gap in the legislation here that would justify the exercise of the Court's parens patriae power." - See paragraphs 4 to 6 - Although the Court had no jurisdiction to hear the appeal, the Court pointed out in obiter that the application judge made several errors of law relating to (1) the standard of proof, and (2) the sufficiency of the judge's reasons - See paragraphs 35 to 47.

Infants - Topic 3350

Child abuse - Child abuse register - Appeals - Section 19(3.7) of the Child and Family Services Act stated: "The court shall determine whether the person has abused a child and record the reasons for its decision, and its decision is final and not subject to appeal." - The Manitoba Court of Appeal, in dismissing this appeal for lack of jurisdiction, stated that "[t]he Court of Appeal is a creature of statute. Its jurisdiction to entertain appeals is derived from statute. Absent statutory authority, there is no inherent right of appeal. ... Section 89 of the Court of Queen's Bench Act ... provides the statutory right of appeal in most cases. It states that an order made in the Queen's Bench may be appealed to this Court unless otherwise provided by statute. Section 19(3.7) of the Act specifically provides otherwise. ... When legislation uses words that purport to limit review, it is up to the courts to determine whether the words used have full privative effect, or whether they create a lesser standard of deference. The language must be analyzed having regard to all the relevant provisions as a whole, and the true intention of the legislature. ... The language in the above section is clear. This Court has considered similar provisions in the past and has confirmed that where clear and unambiguous language appears, as in this case, there is no right of appeal." - See paragraphs 21 to 24.

Infants - Topic 3350

Child abuse - Child abuse register - Appeals - A judge dismissed an application by the Director of Child and Family Services (CFS) under s. 19 of the Child and Family Services Act to have the respondent registered on the Child Abuse Registry - Section 19(3.7) of the Act specified that the Court's decision "is final and not subject to appeal." - The Manitoba Court of Appeal held that there was no gap in the legislation that would justify an intervention - "[T]he parens patriae jurisdiction of the court can be resorted to only where the legislature has not assumed the jurisdiction, or if there is a gap in the legislation that assumes the jurisdiction. ... In this case, CFS is trying to do exactly what Hamilton J.A. said they could not do in the Children's Advocate case [2005 Man. C.A.], appeal the judge's factual determination as to whether abuse occurred. Moreover ... the scheme in regard to the Registry requires automatic registration where there is a finding of guilt in a criminal court whether in or outside of Manitoba. So, the finality of adjudication would occur only in situations where there were no criminal charges involved. In such situations, it is reasonable for the legislature to have chosen finality and proportionality and to have restricted the right of appeal." - See paragraphs 25 to 34.

Infants - Topic 3352

Child abuse - Child abuse register - Costs - The judge dismissed an application by the Director of Child and Family Services (CFS) to have the respondent registered on the Child Abuse Registry, and ordered costs against CFS - The Manitoba Court of Appeal agreed with CFS that costs against it should be awarded only in exceptional circumstances where it acted improperly - However, "having found that this Court has no jurisdiction either by way of appeal or judicial review to review the substantive decision of the application judge, can we interfere with his order as to costs? ... [G]enerally, where the main appeal has failed for want of jurisdiction, costs appeals have been characterized as contingent thereon and deemed insusceptible to appellate review. ... At a minimum, CFS would have required leave to appeal the costs order by itself. ... I do not know whether the application judge here proceeded based on a wrong principle. I acknowledge that it is troubling that the application judge, in his reasons, gives no indication as to why this is an exceptional circumstance that would justify the award of costs. However, considering that the main appeal has failed because of lack of jurisdiction, CFS has not obtained leave and the respondent was not represented by counsel upon appeal, I would dismiss the appeal as to costs as well." - See paragraphs 48 to 57.

Infants - Topic 6044

Legal proceedings - Jurisdiction - Common law or inherent jurisdiction of courts (parens patriae) - [See third Infants - Topic 3350 ].

Practice - Topic 8298

Costs - Appeals - Appeals from order for costs - Requirement of leave to appeal - [See Infants - Topic 3352 ].

Practice - Topic 8404

Costs - Appeals to court of appeal - Existence of right to appeal - [See Infants - Topic 3352 ].

Practice - Topic 8980

Appeals - When appeal available - [See second Infants - Topic 3350 ].

Statutes - Topic 513

Interpretation - General principles - Omissions or gaps - [See third Infants - Topic 3350 ].

Cases Noticed:

Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 53; 27 B.C.A.C. 81; 45 W.A.C. 81, refd to. [para. 8].

I.S. v. Child and Family Services of Western Manitoba et al. (1993), 83 Man.R.(2d) 233; 36 W.A.C. 233 (C.A.), refd to. [para. 21].

Macdonell v. Québec (Commission d'accès à l'information), [2002] 3 S.C.R. 661; 294 N.R. 238; 2002 SCC 71, refd to. [para. 23].

Klippenstein v. Manitoba (Minister of Family Services and Consumer Affairs) (2012), 284 Man.R.(2d) 5; 555 W.A.C. 5; 2012 MBCA 78, refd to. [para. 24].

Edison Rental Agency v. Klippenstein, [2011] Man.R.(2d) Uned. 3; 2011 MBCA 14, refd to. [para. 24].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 27].

Children's Aid Society of Winnipeg v. N. (1979), 9 R.F.L.(2d) 326 (Man. C.A.), refd to. [para. 30].

Beson et al. v. Director of Child Welfare (Nfld.), [1982] 2 S.C.R. 716; 44 N.R. 602; 39 Nfld. & P.E.I.R. 246; 111 A.P.R. 246, refd to. [para. 30].

Garcia Perez v. Polet (2014), 310 Man.R.(2d) 48; 618 W.A.C. 48; 2014 MBCA 82, refd to. [para. 30].

Children's Advocate (Man.) v. Child and Family Services of Western Manitoba et al. (2005), 192 Man.R.(2d) 23; 340 W.A.C. 23; 2005 MBCA 11, consd. [para. 31].

S.J.B. et al. v. Child and Family Services of Winnipeg (2009), 238 Man.R.(2d) 59; 2009 MBQB 12 (Fam. Div.), refd to. [para. 39].

Child and Family Services of Western Manitoba v. S.L. et al. (2008), 233 Man.R.(2d) 287; 2008 MBQB 287 (Fam. Div.), refd to. [para. 40].

Child and Family Services of Winnipeg v. A.M.H. et al. (2002), 163 Man.R.(2d) 69; 269 W.A.C. 69; 2002 MBCA 8, refd to. [para. 49].

Director of Child and Family Services (Man.) v. A.C. (2008), 228 Man.R.(2d) 18; 427 W.A.C. 18; 2008 MBCA 18, refd to. [para. 51].

B.W. v. Child and Family Services of Winnipeg (2009), 245 Man.R.(2d) 186; 466 W.A.C. 186; 2009 MBCA 95, refd to. [para. 51].

R. v. Pawlowski (M.) (1993), 61 O.A.C. 276 (C.A.), leave to appeal refused (1993), 160 N.R. 320; 67 O.A.C. 159 (S.C.C.), refd to. [para. 53].

Carpenter v. Folster (1999), 134 Man.R.(2d) 277; 193 W.A.C. 277 (C.A.), refd to. [para. 54].

Cameron v. Julien (1957), 9 D.L.R.(2d) 460 (Ont. C.A.), refd to. [para. 54].

Western Trust Co. v. Canadian Northern Railway Co. (1919), 49 D.L.R. 668 (Sask. C.A.), refd to. [para. 55].

Rockwell Developments Ltd. v. Newtonbrook Plaza Ltd., [1972] 3 O.R. 199 (C.A.), refd to. [para. 55].

Bjorninen v. Mercredi (1984), 27 Man.R.(2d) 67 (C.A.), refd to. [para. 56].

Statutes Noticed:

Child and Family Services Act, S.M. 1985-86, c. 8; C.C.S.M., c. C-80, sect. 19(3.7) [para. 2].

Child and Family Services Act Regulations (Man.), Child Abuse Reg. 14/99, generally [para. 11].

Child Abuse Regulation - see Child and Family Services Act Regulations (Man.).

Court of Queen's Bench Act, S.M. 1988-89, c. 4; C.C.S.M., c. C-280, sect. 89 [para. 22]; sect. 90(1) [para. 54].

Counsel:

K.J. Janovcik and A. Thiessen, for the applicant;

T.D., on his own behalf.

This appeal was heard on May 4, 2015, before Steel, Monnin and Cameron, JJ.A., of the Manitoba Court of Appeal. In reasons written by Steel, J.A., the Court of Appeal delivered the following judgment, dated August 5, 2015.