T.G. v. Nova Scotia (Minister of Community Services) et al., (2012) 318 N.S.R.(2d) 317 (CA)

• Judge: Beveridge, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 21, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 318 N.S.R.(2d) 317 (CA);2012 NSCA 71

T.G. v. N.S. (2012), 318 N.S.R.(2d) 317 (CA);

    1005 A.P.R. 317

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. JL.001

T.G. (appellant) v. Minister of Community Services and R.C. (respondents)

(CA 398506; 2012 NSCA 71)

Indexed As: T.G. v. Nova Scotia (Minister of Community Services) et al.

Nova Scotia Court of Appeal

Beveridge, J.A.

June 28, 2012.

Summary:

A child born in May 2010 was taken in care almost immediately by the Minister and placed with a foster parent. The child's two sisters (born January 2008 and April 2009) were placed with R.C. for the purposes of adoption in August 2010. R.C. and the foster parent both sought to adopt the child. In June 2011, the Minister advised that the child would be placed with R.C. for adoption. The foster parent sought judicial review, arguing that the Minister's decision was not in the child's best interest, and that the Minister breached the rules of procedural fairness by pre-determining the adoption (reasonable apprehension of bias) and by failing to follow the Minister's own plan of action. The foster parent sought a de novo reconsideration of her adoption application.

The Nova Scotia Supreme Court, Family Division, in a judgment reported (2011), 312 N.S.R.(2d) 68; 987 A.P.R. 68, allowed the application. The Minister's fact-based decision that the child's best interests were to place him with R.C. for adoption was not unreasonable on its face and not reviewable by the court. There was also no merit to the argument that the Minister's plan of action was not followed. However, the Minister breached the rules of procedural fairness and natural justice by pre-determining that R.C. would be the adoptive parent. The court quashed the decision and directed a reconsideration of the matter by a new panel comprised of persons from outside the region. The Minister appealed. Because the child had some African-Canadian heritage, the Association of Black Social Workers of Nova Scotia moved for leave to intervene on the appeal to present submissions on the issue of the placement of black and bi-racial children into white homes.

The Nova Scotia Court of Appeal, per Oland, J.A., in a judgment reported (2012), 313 N.S.R.(2d) 29; 990 A.P.R. 29, denied leave to intervene. Although granting leave to intervene would not delay the proceedings or prejudice the parties, the position of the Association was the same as that advanced on appeal by the Minister. In the context of the issue raised in this proceeding, the effect of transracial placements was not relevant. Further, the court was troubled with the Association's inability to identify what material, and how much, it wished to introduce as fresh evidence on the appeal, especially where this was an expedited hearing limited to one day.

The Nova Scotia Court of Appeal, in a judgment reported (2012), 316 N.S.R.(2d) 202; 1002 A.P.R. 202, allowed the Minister's appeal, dismissing the foster mother's judicial review application. The foster mother applied for leave to appeal to the Supreme Court of Canada. Her request for an expedited hearing was granted and her application for a stay of proceedings was referred to the Court of Appeal.

The Nova Scotia Court of Appeal, per Beveridge, J.A., dismissed the application for a stay of proceedings.

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.

Practice - Topic 8881

Appeals - Leave to appeal - Stay of proceedings pending - [See both Practice - Topic 9090.4 ].

Practice - Topic 9090.4

Appeals - Supreme Court of Canada - Leave to appeal - Stay of judgment pending application for - A party applied for a stay of proceedings pending an application to the Supreme Court of Canda for leave to appeal - The Nova Scotia Court of Appeal, per Beveridge, J.A., held that while the discretion to grant a stay was guided by the three-part primary test in RJR-MacDonald Inc. (SCC), as set out in Fulton Insurance v. Purdy (NSCA), a stay remained available if the primary test was not met where the court was satisfied that there were "exceptional circumstances" that made it fit and just that a stay be granted (secondary test in Fulton) - The court stated that "what is added by the express acknowledgment of granting a stay based on 'exceptional circumstances' is nothing more than a recognition that in order to ensure an appellant's right to pursue a remedy on appeal is not rendered meaningless, there exists a residual discretion to grant the relief despite there being an inability to strictly establish all three tests on a balance of probabilities" - Further, the court noted the test was further modified in cases involving the welfare of children, as set out in Reeves v. Reeves (NSCA) - See paragraphs 46 to 64.

Practice - Topic 9090.4

Appeals - Supreme Court of Canada - Leave to appeal - Stay of judgment pending application for - A child born in May 2010 was taken in care almost immediately by the Minister and placed with a foster parent "with a view to adopt" - The foster parent accepted the placement conditional upon being considered as an adoptive parent - The foster parent knew that the child's two sisters were adopted by R.C. and that R.C. did not wish to adopt the child - R.C. subsequently wished to adopt the child - In a June 2011 placement-adoption meeting to which the foster parent had been invited to present her plan, the Minister advised that the child would be placed with R.C. for adoption (placement with siblings and racial and cultural match) - The adoption decision had been made prior to the meeting, subject to a final decision - Adoption by the foster parent would be considered only if R.C. chose not to adopt - The foster parent sought judicial review, arguing that the Minister breached the rules of procedural fairness by pre-determining the adoption (reasonable apprehension of bias) - The trial judge quashed the Minister's decision - The Minister's broad discretion to select an adoptive parent and determine the decision-making process would be free from judicial intervention, subject to issues of fairness - The foster parent had a legitimate expectation, based on representations to her, that the placement-adoption meeting was for the purpose of selecting between her adoption plan and that of R.C. - However, that decision had already been made - The Minister breached the rules of fairness and natural justice by pre-judging the adoption placement decision while representing to the foster parent that her adoption application would be considered - The Nova Scotia Court of Appeal allowed the Minister's appeal - The court stated that "the judge erred (a) by dealing with the merits, that were not before him, and by his conclusions on the merits, (b) when he determined the standards of procedural fairness, by misapplying those component's of Baker's tests that prescribe respect for the Legislature's chosen procedure, and (c) by misapplying the principle of legitimate expectation. ... procedural fairness and the principle of legitimate expectations do not authorize a court to substantively review the merits of a tribunal's decision. ... the judge was required to give due consideration to the Agency's role, and room to manoeuvre, and instead relied almost entirely on legitimate expectations. ... this was an error of law." - The child was removed from the foster mother's care and placed with R.C. - The foster mother applied for leave to appeal to the Supreme Court of Canada and sought a stay of proceedings pending that application - The Nova Scotia Court of Appeal, per Beveridge, J.A., denied a stay - Although the issues of law raised were neither frivolous or vexatious, the considerations of irreparable harm and balance of convenience favoured denying a stay - The child transitioned well and was thriving - Granting a stay would result in returning the child to the foster mother, only to be again removed if the appeal was denied - That would be contrary to the child's best interests - See paragraphs 66 to 100.

Cases Noticed:

Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 43].

Richter & Partners Inc. v. Ernst & Young, [1997] 2 S.C.R. 5, refd to. [para. 47].

Pacifica Paper Inc., Re, [2001] S.C.C.A. No. 400, refd to. [para. 47].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 48].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 48].

Whebby (W.E.) Ltd. v. Boehner (D.) Trucking & Excavating Ltd. et al. (2006), 249 N.S.R.(2d) 326; 792 A.P.R. 326; 2006 NSCA 129, refd to. [para. 59].

KRG Insurance Brokers (Western) Inc. v. Shafron et al. (2008), 261 B.C.A.C. 276; 440 W.A.C. 276; 2008 BCCA 411, refd to. [para. 61].

Brett et al. v. Amica Mature Lifestyles Inc. (2004), 226 N.S.R.(2d) 188; 714 A.P.R. 188; 2004 NSCA 100, refd to. [para. 62].

Saulnier (Bankrupt), Re (2006), 248 N.S.R.(2d) 159; 789 A.P.R. 159; 2006 NSCA 108, refd to. [para. 62].

Royal Bank of Canada v. Saulnier - see Saulnier (Bankrupt), Re.

Potter et al. v. Board of Education of Halifax Region (2002), 213 N.S.R.(2d) 201; 667 A.P.R. 201; 2002 NSCA 105, refd to. [para. 62].

Reeves v. Reeves, [2010] N.S.R.(2d) Uned. 11; 2010 NSCA 6, refd to. [para. 63].

Nova Scotia (Minister of Community Services) v. B.F. and B.W. (2003), 219 N.S.R.(2d) 67; 692 A.P.R. 67; 2003 NSCA 125, refd to. [paras. 64, 66].

C.B. v. P.C. et al. (2003), 346 A.R. 121; 320 W.A.C. 121; 2003 ABCA 321, refd to. [para. 64].

J.B. v. A.G. (2008), 429 A.R. 394; 421 W.A.C. 394; 2008 ABCA 61, refd to. [para. 64].

Lefebvre v. Lefebvre (2002), 167 O.A.C. 85 (C.A.), refd to. [para. 64].

Leis v. Leis (2011), 275 Man.R.(2d) 55; 538 W.A.C. 55; 2011 MBCA 109, refd to. [para. 64].

Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (Ville) et al., [1999] 1 S.C.R. 381, refd to. [para. 75].

Jones (M.J.) Inc. et al. v. Kingsway General Insurance Co. et al. (2004), 189 O.A.C. 272 (C.A.), refd to. [para. 79].

Anderson et al. v. British Columbia Securities Commission (2004), 198 B.C.A.C. 306; 324 W.A.C. 306; 2004 BCCA 326, refd to. [para. 79].

Stelco Inc. et al., Re (2005), 196 O.A.C. 260 (C.A.), refd to. [para. 79].

Zanzibar Tavern Inc. v. Las Vegas Restaurant & Tavern Ltd. et al. (1996), 90 O.A.C. 172 (C.A.), refd to. [para. 79].

Authors and Works Noticed:

Brown, Henry S., Supreme Court of Canada Practice 2012 (2011), p. 164 [para. 80].

Sharpe, Robert J., Injunctions and Specific Performance (2009 Looseleaf), para. 2.450 [para. 60].

Counsel:

Philip Epstein, Q.C., and Michael Zalev, for the appellant;

Peter C. McVey, for the respondent, Minister of Community Services;

Jane Lenehan, for the respondent, R.C. (Watching Brief).

This application was heard on June 21, 2012, at Halifax, N.S., in Chambers before Beveridge, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on June 28, 2012.