T.G. v. Nova Scotia (Minister of Community Services) et al., (2012) 316 N.S.R.(2d) 202 (CA)

• Judge: Saunders, Fichaud and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 02, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 316 N.S.R.(2d) 202 (CA);2012 NSCA 43

T.G. v. N.S. (2012), 316 N.S.R.(2d) 202 (CA);

    1002 A.P.R. 202

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. MY.005

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

(CA 355869; 375447; 2012 NSCA 43)

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

Nova Scotia Court of Appeal

Saunders, Fichaud and Farrar, JJ.A.

May 2, 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 allowed the Minister's appeal, dismissing the foster mother's judicial review application.

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 2088.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Prejudgment of matter - [See Administrative Law - Topic 2267 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Administrative Law - Topic 2267 ].

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - 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." - See paragraphs 89 to 175.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - A party bringing a fresh evidence motion on appeal argued that the appellate court should not have viewed the tendered fresh evidence, even for the purpose of determining whether to admit it - The Nova Scotia Court of Appeal, rejecting the argument, stated that "I disagree that a judge becomes tainted by a reasonable apprehension of bias merely by viewing evidence, that is subject to an objection, for the purpose of determining the admissibility of that evidence. ... I reject the submission that the panel of this court is tainted by reasonable apprehension of bias because we viewed the tendered fresh evidence in order to rule on its admissibility." - See paragraphs 73, 76.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - At trial, a foster mother was successful in having a Minister's decision in child protection proceedings quashed on the basis of a denial of procedural fairness - The Minister, on appeal, argued that the trial judge displayed a reasonable apprehension of bias by appearing to direct the foster mother's litigation from the bench - The Nova Scotia Court of Appeal stated that "a judge should assist parties to access justice and should control the efficient process of the trial. But this does not mandate the judge to commander one party's theory of the case" - In the present case, the judge "crafted" a new theory for the foster mother's case (bias on basis that decision pre-determined) that was unrelated to the theory advanced by the foster mother's capable counsel - The judge also pressed for disclosure by the Minister of file material he believed was relevant to the bias theory - However, the court was satisfied that the judge's objective was concern for the child and was seeking not to favour one side or the other, but to compress time lines - The threshold for reasonable apprehension of bias was high - Although the trial judge appeared at times to be a protagonist, the court was not satisfied, given the nature of the proceedings, that the judge's conduct showed bias for the outcome - See paragraphs 176 to 203.

Family Law - Topic 1607

Adoption - Adoption order - Setting aside - Grounds for (incl. appeals and judicial review) - [See Administrative Law - Topic 2267 ].

Guardian and Ward - Topic 872

Public trustee or guardian - Powers - To place children for adoption - Section 47(5) of the Children and Family Services Act provided that "where practicable, a child, who is the subject of an order for permanent care and custody, shall be placed with a family of the child's own culture, race or language but, if such placement is not available within a reasonable time, the child may be placed in the most suitable home available with the approval of the Minister" - The Nova Scotia Court of Appeal disagreed with a trial judge that "reasonable time" for placement referred to the child's attachment to his pre-adoptive home - The court stated that "Section 47(5) intends that the placement in the home (which is compatible culturally, racially, linguistically) should be done within a reasonable time from when that placement decision is to be made. For adoption, that is usually the date of the permanent care order, or after any appeals from that order are concluded. The point of the provision is so the child does not have to wait unreasonably for that compatible placement. What is an 'unreasonable' wait may involve various factors, to be weighed by the Agency" - See paragraph 115.

Guardian and Ward - Topic 872

Public trustee or guardian - Powers - To place children for adoption - [See Administrative Law - Topic 2267 ].

Guardian and Ward - Topic 5337

Foster homes and parents - Foster parents - Right re adoption - [See Administrative Law - Topic 2267 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - A foster parent, who wished to be considered as a child's adoptive parent, successfully sought judicial review for want of procedural fairness - The Minister appealed - The foster mother tendered "new evidence" respecting the adoption decision's merits - The Nova Scotia Court of Appeal held that the issue on appeal was procedural; who should be the adoptive parent was not an issue before the court - The "new evidence" was not admissible for an issue not before the court - The court stated that "the four-branched Palmer test applies to issues that were decided at the trial that is under appeal. When the fresh evidence relates to the process of the tribunal whose decision is appealed, Palmer's criteria recede and are replaced by a test that asks whether the evidence is 'credible and sufficient, if uncontradicted, to justify the appellate court making the order sought'" - However, the court admitted the "new evidence" for the limited purpose of assisting the court to determine the procedural issues being appealed - See paragraphs 77 to 85.

Cases Noticed:

R. v. Hurley (G.D.), [2010] 1 S.C.R. 637; 401 N.R. 232; 350 Sask.R. 1; 487 W.A.C. 1, refd to. [para. 75].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 77].

Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al., [2000] 1 S.C.R. 44; 251 N.R. 1; 250 A.R. 314; 213 W.A.C. 314, refd to. [para. 77].

United States of America v. Shulman, [2001] 1 S.C.R. 616; 268 N.R. 115; 145 O.A.C. 201, refd to. [para. 77].

May et al. v. Ferndale Institution et al., [2005] 3 S.C.R. 809; 343 N.R. 69; 220 B.C.A.C. 1; 362 W.A.C. 1, refd to. [para. 77].

R. v. O'Brien, [1978] 1 S.C.R. 591; 16 N.R. 271, refd to. [para. 78].

R. v. Dell (C.M.) (2005), 195 O.A.C. 355 (C.A.), refd to. [para. 78].

R. v. Kelly (R.W.) (1999), 213 N.B.R.(2d) 1; 545 A.P.R. 1 (C.A.), refd to. [para. 78].

R. v. Assoun (G.E.) (2006), 244 N.S.R.(2d) 96; 774 A.P.R. 96; 2006 NSCA 47, refd to. [para. 78].

R. v. Wolkins (R.D.) (2005), 229 N.S.R.(2d) 222; 725 A.P.R. 222; 2005 NSCA 2, refd to. [para. 79].

Children's Aid Society of Halifax v. C.M. et al. (1995), 145 N.S.R.(2d) 161; 418 A.P.R. 161 (C.A.), refd to. [para. 82].

Children's Aid Society of Cape Breton v. L.M. and B.M. (1998), 169 N.S.R.(2d) 1; 508 A.P.R. 1 (C.A.), refd to. [para. 82].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 86].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 87].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1, refd to. [para. 87].

Bowater Mersey Paper Co. v. Communications, Energy and Paperworkers Union of Canada, Local 141 (2010), 289 N.S.R.(2d) 351; 916 A.P.R. 351; 2010 NSCA 19, refd to. [para. 88].

Kelly v. Police Commission (N.S.) (2006), 241 N.S.R.(2d) 300; 767 A.P.R. 300; 2006 NSCA 27, refd to. [paras. 88, 90].

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; 2008 NSCA 69, refd to. [para. 88].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201, refd to. [para. 90].

Moreau-Bérubé v. New Brunswick (Judicial Council) - see Conseil de la magistrature (N.-B.) v. Moreau-Bérubé.

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38, refd to. [para. 90].

Creager v. Provincial Dental Board (N.S.) (2005), 230 N.S.R.(2d) 48; 729 A.P.R. 48; 2005 NSCA 9, refd to. [para. 90].

Allstate Insurance Co. of Canada v. Nova Scotia Insurance Review Board (2009), 281 N.S.R.(2d) 138; 893 A.P.R. 138; 2009 NSCA 75, refd to. [para. 90].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 92].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63, refd to. [para. 93].

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, refd to. [para. 112].

Nova Scotia (Minister of Community Services) v. T.H. et al. (2010), 293 N.S.R.(2d) 200; 928 A.P.R. 200; 2010 NSCA 63, leave to appeal denied [2011] 1 S.C.R. xi; 416 N.R. 398, refd to. [para. 123].

Children and Family Services of Colchester County v. K.T. (2010), 294 N.S.R.(2d) 379; 933 A.P.R. 379; 2010 NSCA 72, refd to. [para. 124].

Bell Canada v. Canadian Telephone Employees Association et al., [2003] 1 S.C.R. 884; 306 N.R. 34, refd to. [para. 127].

Compagnie pétrolière Impériale ltée v. Québec (Ministre de l'Environnement), [2003] 2 S.C.R. 624; 310 N.R. 343, refd to. [para. 127].

D.T., Re (1992), 113 N.S.R.(2d) 74; 309 A.P.R. 74 (C.A.), refd to. [para. 132].

Family and Children's Services of Kings County v. D.R. et al. (1992), 118 N.S.R.(2d) 1; 327 A.P.R. 1 (C.A.), refd to. [para. 133].

Children's Aid Society of Cape Breton v. L.M. and B.M. (1999), 177 N.S.R.(2d) 25; 542 A.P.R. 25 (C.A.), refd to. [para. 134].

I.C. et al. v. Children's Aid Society of Shelburne County et al. (2001), 196 N.S.R.(2d) 70; 613 A.P.R. 70; 2001 NSCA 108, refd to. [para. 135].

Children's Aid Society of Shelburne County v. I.C. - see I.C. et al. v. Children's Aid Society of Shelburne County et al.

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201, refd to. [para. 178].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 179].

Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co. et al. (2001), 196 N.S.R.(2d) 118; 613 A.P.R. 118; 2001 NSCA 112, refd to. [para. 181].

R. v. Curragh Inc. et al., [1997] 1 S.C.R. 537; 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1, refd to. [para. 182].

A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 82 B.C.A.C. 81; 138 W.A.C. 81, refd to. [para. 191].

Counsel:

Peter C. McVey, for the appellant;

C. LouAnn Chiasson, Q.C., and Jean Beeler, Q.C., for the respondent, T.G.;

M. Jane Lenehan, for the respondent, R.C.

This appeal was heard on January 30 and March 22, 2012, at Halifax, N.S., before Saunders, Fichaud and Farrar, JJ.A., of the Nova Scotia Court of Appeal.

On May 2, 2012, Fichaud, J.A., delivered the following judgment for the Court of Appeal.