2020 NLCA 17, 2020 NLCA 17

Z.B. (appellant) v. Provincial Director of Adults in Need of Protective Intervention (first respondent) and Western Regional HealthAuthority (second respondent) (19/60) Indexed As: Z.B. v. Provincial Director of Adults in Need of Protective Intervention 2020 NLCA 17 5 C.A.N.L.R. 450 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., White and Butler JJ.A. May 7, 2020

Summary: Z.B. was subject to a continuous custody order under the terms of the Children and Youth Care and Protection Act. The order for his continuous custody would have expired on the weekend of February 6-7, 2016. On the eve of his 18th birthday, Z.B. was residing in anopen custody facility under the Youth Criminal Justice Act as the result of criminal convictions and was due to be released on MondayFebruary 8, 2016. The Regional Director was aware of Z.B.’s circumstances and that he was about to ‘time out’ of the care of theManager of Child Protection.

The Regional Director commenced an investigation into Z.B.’s needs, given the concern it was possible forZ.B. to have been released from the open custody facility without the proper protections in place. On February 5, 2016, an ex parteapplication was filed by a social worker seeking an adult protection investigation. The applications judge ordered, ex parte, that aninvestigation be conducted; the ex parte Order was not limited in duration. On August 29, 2017, the Provincial Director filed anOriginating Application to have Z.B. declared an adult in need of protection pursuant to the Adult Protection Act.

Z.B. filed his ownapplication for a writ of habeas corpus with certiorari in aid. The applications judge heard and denied Z.B.’s habeas corpus application.Z.B. appealed the denial of his habeas corpus application. Held: Appeal allowed. Butler J.A. (Fry C.J.N.L. and White J.A. concurring): Despite Z.B.’s appeal being rendered moot by the Provincial Director withdrawingthe application, and the fact that Z.B. no longer claimed to be detained, this Court exercised its discretion to hear the appeal as the issuesconcerned broader questions of process, procedure and statutory

interpretation relating to adult protection matters (paragraphs 21-31). While the applications judge had the jurisdiction to make the ex parte Order, the terms of the Order did not address the specific emergentneed, the Order was open-ended, and it failed to provide a return date. Furthermore, Z.B. should have been served with an OriginatingApplication, an Emergency Interim Application, the ex parte Application, and the ex parte Order. Therefore, procedural errors weremade on the ex parte Application and Order; the lack of procedural fairness in this instance was sufficient to render Z.B.’s detention unlawful. Furthermore, the applicationsjudge erred in law in his

interpretation of the Adult Protection Act, particularly, the purpose of

section 19, the extent of powers that couldbe exercised thereunder, and the extent of “support services” referenced in

section 20 (paragraphs 32-96). Cases cited: Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342 (S.C.C.) Hardayal v. Canada (Minister of Manpower and Immigration), (SCC), [1978] 1 S.C.R. 470 (S.C.C.) Shoal Investments Ltd. v. Murphy, 2019 NLCA 78 A.A. (Re), 2019 NLCA 7, 4 C.A.N.L.R. 100 Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502

Abbas v. Western Health Care Corporation, 2017 NLCA 24, 1 C.A.N.L.R. 609 Nova Scotia (Minister of Community Services) v. K.(L.) (1991), (NS FC), 107 N.S.R. (2d) 377 (N.S.Fam. Ct.) Rizzo v. Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27 (S.C.C.) Dwyer v. Bussey, 2017 NLCA 68, 2 C.A.N.L.R. 327 J.(J.) (Re), 2005 SCC 12, [2005] 1 S.C.R. 177 Statutes considered: Adult Protection Act, SNL 2011, c. A-4.01, sections 7, 10(1)(c), 12-17, 19-23 Children, Youth and Families Act, SNL 2018, c. C-12.3 Youth Criminal Justice Act, S.C. 2002, c. 1 Children and Youth Care and Protection Act, SNL 2010, c. C-12.2, sections 2(1)(s), 10, 20(1)(b), 21(1)(b), 21(1)(c), 23, 26-27, 41(1)(

a) An Act for the Better Administration of Justice in Newfoundland and for Other Purposes, 5 Geo. IV, cap. 6 (“Judicature Act, 1824”),section 6 Judicature Act, RSNL 1990, c. J-4 Neglected Adults Welfare Act, RSNL 1990, c. N-3, sections 4-6, 8 Rules considered: Rules of the Supreme Court, 1986, rule 56A.18 Supreme Court Family Rules, rule F17.04, being

Part IV of the Rules of the Supreme Court, 1986 Texts considered: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: NexisLexis Canada, 2014) Other: Hansard, Vol. XLVI, No. 10, April 5, 2011 Counsel: Joan Dawson, for the appellant; David Rodgers and Nicholas Leamon, for the first respondent; Janet Carpenter, for the second respondent. The appeal was heard on February 20, 2020 before Fry C.J.N.L., White and Butler JJ.A.

The following judgment was filed on May 7, 2020 by Butler J.A. for the Court. ______________________________________________________________ Butler J.A.: [1] This appeal engages procedural and substantive issues pertaining to detention, during the investigative phase and otherwise, ofan individual pursuant to the Adult Protection Act, S.N.L. 2011, c. A-4.01 (the “AP Act”). BACKGROUND

[ 2 ] Z.B. is twenty-two years old. At age four he was placed in foster care and ultimately became the subject of a continuous custody order under the terms of predecessor legislation to what is currently the Children, Youth and Families Act , S.N.L. 2018, c. C-12.3 . [ 3 ] On the eve of his eighteenth birthday, Z.B. was residing in an open custody facility under the Youth Criminal Justice Act , S.C. 2002, c. 1 as a result of his conviction on multiple offences. He was due for release on Monday February 8, 2016. The order for his continuous custody would have expired on the weekend of February 6-7, 2016 pursuant to section 41(1) (

a) of the Children and Youth Care and Protection Act , S.N.L. 2010 c. C-12.2 , in effect at that time (the “ CYCP Act ”). [ 4 ] The Second Respondent (the “Regional Director”) was aware of Z.B.’s multiple issues and limitations and that he was about to ‘time out’ of the care of the Manager of Child Protection. This knowledge led the Regional Director to commence an investigation into Z.B.’s needs.

The December 2015 and January 2016 reports of Z.B.’s previous social worker confirmed that he had referred Z.B. for supportive community services. [ 5 ] Nevertheless, the Regional Director’s immediate concern was that, over the weekend or at least on the following Monday, it was possible for Z.B. to leave the open custody facility with no protections in place.

These unusual facts led the Regional Director to seek an order respecting Z.B.’s care. [ 6 ] Where the First Respondent (the “Provincial Director”) is satisfied of the need to do so from a report prepared by the Regional Director, the Provincial Director has responsibility to make an application to court seeking to have a person declared to be an adult in need of protection pursuant to the AP Act .

The Application [ 7 ] On direction from her superiors, on February 5, 2016, social worker Melody Grant filled in the blanks and ticked the boxes on a pro-forma Ex Parte Application (the “Application”) for an adult protection investigation pursuant to

section 19 of the AP Act . Attachment A to the Affidavit of Ms. Grant outlined Z.B.’s history and the Regional Director’s concerns and concluded by saying: We are asking for an order for 6 months to allow us to complete our adult protection investigation. During this time, we are requesting to have (Z.B.) live in a structured environment, under the care of Western Health Regional Health Authority staff. [ 8 ] Somewhat inconsistent with this request, paragraph 4 of the Application sought an order: “(

a) requiring the release of information referred to in

Section 16 of the AP Act ; (

b) requiring a medical assessment by a health care professional; (

c) requiring a capacity assessment by a person approved to perform it under subsection 6(5); (

d) allowing a person performing an assessment under paragraph (

b) or (

c) to enter into a premises to perform that assessment; … (

f) requiring that the adult who may be in need of protective intervention be removed from the place of residence; and/or (

g) that the judge considers necessary.” [ 9 ] It is unclear whether the matter was addressed as a desk order or if the social worker appeared before the applications judge. In either case, the applications judge ordered an investigation be conducted on Z.B. pursuant to

section 19 of the AP Act and specified each of the conditions referenced in paragraph 8 above (the “Order”). The Order was not limited in duration. [ 10 ] Two other points are noteworthy about the Application. [ 11 ] First, it was not accompanied by either an Originating Application (which would have been the appropriate pleading to commence the proceeding) or an Inter Partes Interim Application (which would have prescribed a return date on the accompanying Notice).

Both of these would have required service upon Z.B. and notice to a person with whom he was residing. [ 12 ] Secondly, the Application made no reference to the need to detain Z.B. [ 13 ] Upon completion of his sentence on Monday, February 8, 2016, Z.B. was escorted to a placement designated by the Provincial Director and under the responsibility of the Regional Director.

Z.B. asserts that thereafter he was detained in secure placements, had no independent access to the community and was required to be escorted by staff when permitted to be outside his placement. [ 14 ] It is not disputed that the Regional Director did, on September 2, 2016 re-attend at court with documentation seeking an extension of what it believed was a temporary order and was advised that the February 5, 2016 Order was not limited in its duration. [ 15 ] However it was not until August 29, 2017 that the Provincial Director filed an Originating Application pursuant to section 21(1) of the AP Act seeking that Z.B. be declared an adult in need of protection. [ 16 ] The Affidavit and 22 pages of documents that accompanied the August 29, 2017 application described the various assessments that had been made on Z.B. and reported that Z.B. had 18 visits to the emergency department and eight admissions to the psychiatric unit of the local hospital since February of 2016.

It attached the Adult Protection Service Plan that had been prepared by the Regional Director and which recommended restrictive strategies aimed at modifying Z.B.’s behaviors for his safety. [ 17 ] While there were appearances made and a hearing date set for the Originating Application, it did not proceed in part because Z.B. filed an Originating Application for a writ of habeas corpus with certiorari in aid on October 22, 2018. In essence, Z.B. challenged the legality of his alleged detention. The habeas corpus application was heard on December 17, 2018.

[18] In January 2019 the applications judge denied the habeas corpus application finding that Z.B.’s detention was lawful. Z.B.appeals this decision (the “Decision”). [19] Subsequent to the filing of this appeal in July 2019, Z.B. acknowledged that his circumstances changed, that he has been free toleave his premises unaccompanied and he admits therefore that he is no longer detained. The Provincial Director also withdrew itsapplication for a declaration under the AP Act. These facts led the Court to require supplementary submissions from the parties on theissue of mootness.

ISSUES [20] The issues to be decided on this appeal are: 1. If the issue is moot, should the Court nevertheless entertain the appeal? 2. Was Z.B. illegally detained and entitled to a writ of habeas corpus? ISSUE 1 – If the Issue is Moot, Should the Court Nevertheless Entertain the Appeal?

Mootness [21] In their respective Factums, the parties acknowledge that since: • the Provincial Director has withdrawn its application for a declaration that Z.B. is an adult in need of protection; and • Z.B. no longer claims to be detained, Z.B.’s appeal from the court’s denial of his request for habeas corpus is moot. [22] I agree with this joint submission as the “required tangible and concrete dispute has disappeared and the issues have becomeacademic” (Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, at para. 16 (S.C.C.)). [23] However, this Court can exercise discretion to decide moot cases in certain circumstances. In doing so, Borowski establishes thefactors to be considered:

(1) The presence of an adversarial context;

(2) Judicial economy; and

(3) The need for the Court to be sensitive to its role in judicial intervention in our political framework. (Borowski, at paras. 29-42) Lack of an Adversarial Context [24] The narrow question on this appeal is whether Z.B.’s detention was lawful; this will require

interpretation of the AP Act andassessment of the procedural steps taken by the Respondents. [25] There are no reported decisions under the AP Act to guide the Court in this exercise. [26] Thus, should this Court proceed to hear this moot appeal, the Respondents may be guided on both procedural and substantivematters relative to applications made under the AP Act. Judicial Economy [27] In support of applying scarce judicial resources to address the issues raised “the case raises an issue of public importance ofwhich a resolution is in the public interest” (Borowski at para. 37).

Z.B. is a member of a marginalized and disadvantaged sector of thecommunity and the case raises issues of broad importance to the administration of justice (Hardayal v. Canada (Minister of Manpowerand Immigration), (SCC), [1978] 1 S.C.R. 470 (S.C.C.)). Sensitivity to the Role of the Legislature [28] The lack of jurisprudence under the AP Act has already been addressed. A second consideration is the Respondents’acknowledgment that the legislature intends to review the AP Act in the near future.

A third is that the parties advised during theirsubmissions that the Respondents have since filed a new application (to have Z.B. declared an adult in need of protection) and that a datehas been scheduled for the hearing. [29] If the appeal was heard, the decision would: (

a) address the jurisdiction of the applications judge to make an order in the form of that granted in February 2016; (

b) interpret various sections of the AP Act; and

(

c) clarify the procedure to the followed on applications under the AP Act . [ 30 ] I do not see how proceeding in this instance could be construed as an intrusion into the realm of the legislature. It may in fact assist the parties in their ongoing relationship. Conclusion on Mootness [ 31 ] The issues raised are not purely hypothetical; they concern broader questions of process, procedure and statutory

interpretation in the realm of adult protection. I would exercise discretion to hear this moot appeal. ISSUE 2 – Was Z.B. Illegally Detained and Entitled to a Writ of Habeas Corpus ? Standard of Review [ 32 ] The standard of review on a question of statutory

interpretation is correctness but whether a detention is lawful is a question of mixed fact and law subject to review on the deferential standard of palpable and overriding error unless there is an extricable error in principle. Jurisdiction of the Court to make the February 5, 2016 Order [ 33 ] When the ex parte Application came before the applications judge on Friday February 5, 2016, Z.B. was a youth in need of protection pursuant to sections 2(1)(

s) and 10 of the CYCP Act . [ 34 ] There is no question that there was an identified urgent need to ensure Z.B.’s protection by whatever means possible because on a practical basis, Z.B. could have been released from open custody on February 8, 2016, incapable of his own care. [ 35 ] Since Z.B. was a youth when the Application was filed but the Application was brought and the Order was granted, under the AP Act , I would characterize the Order as facially invalid. [ 36 ] However, this Court has expressed the view that a “pleading is not defective just because it does not stipulate the statutory or other legal basis upon which a claim is being asserted…” ( Shoal Investments Ltd. v.

Murphy , 2019 NLCA 78 , at para. 107 ). I conclude that similarly, an order should not be defective because it cites the incorrect statutory or common law basis on which such an order could be granted. [ 37 ] On February 5, 2016, the court had statutory authority under the CYCP Act to make an order respecting Z.B.’s care and protection as a youth.

At issue is the legitimacy of the Order once he ceased to be a youth. [ 38 ] I conclude that the emergency intervention provision (section 23) of the AP Act would provide an appropriate basis for the short term continuation of an order granted on February 5, 2016 after Z.B. turned 18 and that this

section would have permitted the court to grant a warrant for Z.B.’s removal from his residence. The relevant portions read as follows: 23.

(1) Where a director or social worker believes (

a) that an adult is in need of protective intervention; and (

b) a less intrusive course of action that would adequately protect the adult is not available, the director or social worker shall file an application with the court for a warrant to remove that adult.

(2) Where satisfied on the basis of the director's or social worker's sworn information that there are reasonable grounds to believe that (

a) an adult is in need of protective intervention; and (

b) a less intrusive course of action that would adequately protect the adult is not available, a judge may issue a warrant authorizing the director or social worker to enter a premises or vehicle or board a vessel or aircraft, by force if necessary, to remove the adult.

(3) Notwithstanding subsection (1), where a director or social worker has reasonable grounds to believe there would be an immediate risk to the adult’s health and safety if no action were taken during the time required to obtain a warrant, the director or social worker may enter a premises or vehicle or board a vessel or aircraft, by force if necessary, to remove the adult without a warrant .

(4) At the request of a director or social worker, a peace officer shall assist in enforcing a warrant issued under subsection (2), or if a warrant is not obtained, the peace officer shall assist a director or social worker under subsection (3). … [ 39 ] There is another source of statutory authority to consider. In A.A . (Re) , 2019 NLCA 7 , this Court addressed

section 6 of what the Court referenced as the Judicature Act, 1824 [1] and concluded that it continued to supply the jurisdictional “fountain” for appointment of guardians of the person in the absence of legislation addressing the topic (paras. 22-24). [ 40 ] For these reasons, I conclude that the applications judge had statutory jurisdiction under both the CYCP Act and the Judicature Act , R.S.N.L. 1990, c. J-4 , to make an order respecting Z.B’s care and protection on February 5, 2016. Such an order could also have contained a provision, under

section 23 of the AP Act , for its short term continuance once Z.B. became an adult over the weekend of February 6-7, 2016.

Common Law Jurisdiction [41] I also conclude that the court had the ability to grant an order respecting Z.B. at common law. [42] The parens patriae jurisdiction of the court was discussed at length by this Court in A.A. at paragraphs 49-51: [49] The parens patriae jurisdiction is an inherent jurisdiction vested in a superior court as the inheritor of the jurisdiction from theEnglish court system.

Section 3(2) of the Judicature Act provides that the Supreme Court of Newfoundland and Labrador has “all theinherent powers of a superior court at common law.” [50] In Re Eve, La Forest J. described the parens patriae jurisdiction of a superior court in Canada as follows: … From the earliest time, the sovereign, as parens patriae, was vested with the care of the mentally incompetent. This right and duty, asLord Eldon noted in Wellesley v.

Duke of Beaufort [(1827), 2 Russ. 1, 38 E.R. 236] at 2 Russ., at p. 20, 38 E.R. at p. 243 is founded onthe obvious necessity that the law should place somewhere the care of persons who are not able to take care of themselves. In earlyEngland, the parens patriae jurisdiction was confined to mental incompetents, but its rationale is obviously applicable to children and,following the transfer of that jurisdiction to the Lord Chancellor in the seventeenth century, he extended it to children under wardship,and it is in this context that the bulk of the modern cases on the subject arise.

The parens patriae jurisdiction was later vested in theprovincial superior courts of this country, … The parens patriae jurisdiction is … founded on necessity, namely the need to act for the protection of those who cannot care forthemselves.

The courts have frequently stated that it is to be exercised in the “best interest” of the protected person, or again, for his orher “benefit” or “welfare.” The situations under which it can be exercised are legion; the jurisdiction cannot be defined in that sense. … [T]he categories underwhich the jurisdiction can be exercised are never closed. … [T]he jurisdiction is of a very broad nature and that it can be invoked in suchmatters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list …is not exhaustive.

What is more, … a court may act not only on the ground that injury to person or property has occurred, but also on the ground that suchinjury is apprehended. … [T]he jurisdiction is a carefully guarded one. The Courts will not readily assume that it has been removed bylegislation where a necessity arises to protect a person who cannot protect himself. [51] Earlier, La Forest J. also observed, citing Beson v.

Director of Child Welfare (Nfld.), (SCC), [1982] 2 S.C.R. 716,142 D.L.R. (3d) 20, that “even where there is legislation in the area, the courts will continue to use the parens patriae jurisdiction to dealwith uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit” (at 411).

Thisapproach is based on the continued existence of the parens patriae jurisdiction where it is not clearly supplanted by other legislation sothat there is still “a gap in the legislative scheme” or “a deficiency in the statute” (per Wilson J. in Beson at 724). [43] In A.A. this Court cited cases where the parens patriae jurisdiction of the court had been relied upon to make either health-carerelated orders or a decision respecting where an adult with progressive dementia should reside (paras. 56-57). [44] This Court concluded that the jurisdiction extended to include the appointment of a guardian of a mentally disabled adult withoutbeing limited to approval of a specific proposed course of action and that the Court retained jurisdiction to make individual decisions, onapplication by a guardian or another interested person affecting the care or treatment of the ward, based on the ward’s best interests(para. 62). [45] A.A. supports an “expansive approach” to be adopted by the Court with respect to interpreting the jurisdiction of the Courtgenerally, such that a superior court has jurisdiction to dispose of all matters that come before it and which the Court is not specificallyforbidden to consider (at para. 44). [46] I conclude therefore that the parens patriae jurisdiction would also have enabled the court to make an order affecting Z.B.’s careand protection on February 5, 2016.

An order granted under this jurisdiction would have remained equally valid whether Z.B. was ayouth or an adult. The Procedure Followed on the Ex Parte Application [47] Z.B.’s circumstances in February 2016 were described in the Affidavit attached to the ex parte Application and this establishedthat Z.B. was incapable of caring for himself.

The applications judge did not err in inferring that Z.B. may be a person in need ofprotection. [48] As noted in A.A. at paragraph 17, “Although not strictly limited in its application to situations of active abuse or neglect, the focusof this state-initiated scheme is to provide a means of removal or protection from an abusive or neglectful environment and to ensurethose having a care responsibility provide the requisite financial support”. [49] The ex parte Application suggested that it was an application to investigate pursuant to

section 19 of the AP Act which states: 19.

(1) Where it may be necessary during the course of an investigation, a director may apply to a court for an order under subsection(2).

(2) A judge may make an order (

a) requiring the release of information referred to in

section 16; (

b) requiring a medical assessment by a health care professional;

(

c) requiring a capacity assessment by a person approved to perform it under subsection 6(5); (

d) allowing a person performing an assessment under paragraph (

b) or (

c) to enter into a premises to perform that assessment; (

e) requiring auditing or other financial evaluation of assets; (

f) requiring that the adult who may be an adult in need of protective intervention be removed from the place of residence; or (

g) that the judge considers necessary where the judge is satisfied on evidence under oath that there are reasonable grounds to believe those actions are required to assess the adult who is the subject of the investigation, or his or her assets. [ 50 ] It is clear that as of February 5, 2016 there was already an investigation underway by the Respondents; they did not require an order to commence one. In addition, Z.B. had already been referred for services; he did not require an order to access these. [ 51 ] As to the conditions requested in the Order,

section 19 provides authority to the Respondents to do specific tasks “required to assess the adult who is the subject of the investigation…” such as the release of information.

However, the only emergent issue on February 5, 2016 was the need to ensure that the Respondents would have responsibility for Z.B. once he was no longer a youth and that they could remove him from the open custody facility where he was housed on Monday February 8, 2016 and place him in premises that were suitable. [ 52 ] While I have concluded that the applications judge had the jurisdiction to make an order, the terms of the Order did not address the specific emergent need. [ 53 ] Of greater concern is the open-ended duration of the Order and the failure to provide a return date.

There was an emergency warranting an ex parte Application, but an order granted in emergency situations is justified only for a minimal duration and a return date within a reasonably short period should have been provided by the Registry and stated in the Order. [ 54 ] Rule 56A.18 of the Rules of the Supreme Court , 1986, S.N.L. 1986, c. 42,

Schedule D in force at the time of the Application and the comparable new Rule F17.04(2) and (3) of the Supreme Court Family Rules both provide that where a judge grants an order without notice, the Court shall set a return date within 7 days of making the order and requires that service be made on all parties and persons affected by the order. [ 55 ] Z.B. should have been served with an Originating Application, an Emergency Interim Application, the ex parte Application and the ex parte Order (which would have referenced a hearing date).

Z.B. should have been able to present his case within a reasonable period following the Order. [ 56 ] Had it been clear that a warrant to remove was requested,

section 23 of the AP Act mandated an interim application within two clear days of the removal and a hearing within two clear days of the interim application. [ 57 ] As suggested in A.A., the ex parte Order had implications on the values of respect, autonomy and fairness, which required notice to Z.B. and an opportunity to challenge the Order (at para. 85). [ 58 ] I conclude that there were procedural errors made on the ex parte Application and the Order.

The Habeas Corpus Application [ 59 ] In the 17 months between the Order and the First Respondent’s application for a declaration, the Respondents provided Z.B. with support services consistent with their assessment of his needs and the purpose of the AP Act . [ 60 ] A further year passed and on October 20, 2018, Z.B. filed an Originating Application for habeas corpus (the “ Habeas Corpus Application”).

The same judge presided over the Habeas Corpus Application and determined that his February 5, 2016 Order was valid, that Z.B. had been detained and that his detention was lawful in accordance with the Order and the AP Act . Therefore habeas corpus relief was denied. Grounds for Challenging a Deprivation of Liberty [ 61 ] The applications judge referenced the test to be met on a habeas corpus application as established in Mission Institution v. Khela , 2014 SCC 24 , [2014] 1 S.C.R. 502 .

Therein the Court confirmed that there are three potential grounds to challenge a deprivation of liberty as unlawful: jurisdiction, procedural fairness and reasonableness of the decision in the administrative law sense (at paragraph 85). Jurisdiction [ 62 ] I have already concluded that the applications judge had both statutory and common law jurisdiction to make an order respecting Z.B.’s care and that the Order could include a provision for the issuance of a warrant to remove Z.B. from his premises. Jurisdiction does not form a basis to challenge the deprivation of Z.B.’s liberty.

Procedural Fairness [ 63 ] The applications judge cited this Court in Abbas v. Western Health Care Corporation , 2017 NLCA 24 and was aware that on an application for habeas corpus, the court may examine the underlying circumstances of the whole record when considering procedural fairness (at para. 15). [ 64 ] Any power to deprive an individual of their liberty must be exercised with great caution and maximum procedural precautions.

As stated in Nova Scotia (Minister of Community Services) v. K.(L.) (1991), (NS FC), 107 N.S.R. (2d) 377 (N.S.Fam. Ct.), at paragraph 51: The Charter establishes that no one is to be deprived of liberty and security of person except in keeping with the principles offundamental justice.

This means notice of a hearing where such deprivation may be the end result, it means the person whose liberty isto be restricted is to be advised that such is proposed and the evidence or basis on which the deprivation is sought, it means that theperson who is the subject of the deprivation hearing has the opportunity to put his or her case forward in a fair and reasonable manner, itmeans the final arbiter must exercise an independent, unbiased and objective mind and make a decision based on the evidence before thearbiter. [65] In this case, the record established that following the ex parte order, Z.B. was not served with a Notice of a return date nor did hereceive any of the documents that should have been submitted to the court under Rule 56A.18.

He was not served with either an InterimEmergency Application or an Originating Application and was not given the opportunity to return to court within a reasonable time topresent his case. The denial of procedural fairness led to Z.B. being detained on a long term basis. [66] Khela establishes that a denial of procedural fairness is sufficient to render an order invalid, and I conclude that the lack ofprocedural fairness in this instance is sufficient to render Z.B.’s detention unlawful. [67] The appeal could be determined on this sole basis. Nevertheless, I shall also address the applications judge’s

interpretation of theAP Act. Interpretative Principles General [68] The applications judge concluded that on a proper

interpretation of the AP Act (and sections 19-20 in particular), theRespondents had the lawful authority to detain a person during the investigative stage and that Z.B.’s long term detention was warrantedbecause of the risk to his safety if he was able to leave the security of his placement (paras. 65-68). [69] The words of a statute must be understood in their entire context, in their grammatical and ordinary sense, harmoniously with thescheme and object of the AP Act (Rizzo v. Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 (S.C.C.)). [70] In Dwyer v. Bussey, 2017 NLCA 68 at paragraph 57, Green C.J.N.L. (dissenting, but not on this point) summarized the currentapproach to

interpretation of legislation in this province as follows: The approach to

interpretation of provincial statutes in this jurisdiction is to ascribe to the words used a meaning that reconciles thosewords with all other indicators of meaning, including the mischief against which the remedial nature of the statute is directed as well asthe context of the surrounding legislative text and related statutes and the social context of the provision, and by inference therefrom, thepurpose or object of the provision under consideration:

Interpretation Act, RSNL 1990, c. I-19 , s. 16; Archean Resources Ltd. v.Newfoundland (Minister of Finance), 2002 NFCA 43, 215 Nfld. & P.E.I.R. 124 at paragraphs 22-23; R. v. Pardy , 2014 NLCA 37, 357Nfld. & P.E.I.R. 49 at paragraphs 51-52; Lynch v. St. John’s (City), 2016 NLCA 35, 380 Nfld. & P.E.I.R. 13, at paragraphs 75-78, 79.

The Purpose of the Adult Protection Act [71] Although the AP Act does not contain a “Purpose” section, this Court stated in A.A. at paragraph 15 “Using a model similar to thescheme for intervention in respect of children in need of protection” [the AP Act] “essentially provides for protective intervention bypublic authorities for adults experiencing abuse or who are incapable of caring for themselves.” [72] Read as a whole, the process contemplated by the legislation is clear.

When the Respondents are alerted to an adult who may bein need of protective intervention, a director is required to complete an evaluation (sections 12-13). When the evaluation is complete,and the director believes the adult is in need of protection intervention, he/she shall direct that this be completed and in such a case theinvestigator will have the powers enumerated in sections 14-16. Where necessary during the investigation phase, a director may apply tocourt for an order authorizing certain actions that the court considers are required to assess the adult under investigation (section 19).

Following investigation, where a director believes the adult to be in need of protective intervention, the director shall prepare a serviceplan for the adult and the provincial director may apply to the court for a declaration that the adult is an adult in need of protectiveintervention (sections 20-21). On the hearing of such an application, the court may make a declaration and order conditions which shallapply to the adult found to be an adult in need of protection (section 22).

The Language Used and the Context Provided by Other Sections [73] At issue here was whether the Order made during the course of the Regional Director’s investigation under

section 19 wouldsupport Z.B.’s long term detention. [74] The words “detention” and “detain” are not used in the AP Act although (on an emergency basis) a warrant to remove iscontemplated by

section 23. [75] The only enumerated power in

section 19 that could be considered as potentially authorizing a detention during the investigativephase is paragraph (

f) which permits an order “that the adult who may be an adult in need of protective intervention be removed from theplace of residence”. [76] The Respondents suggest that paragraph 19(1)(f) (which was included in the February 5, 2016 Order) read with section 10(1)(c)(which authorizes the Provincial Director to maintain custody of an adult) and section 20(1)(a)(iv) (which permits the Regional Director

to provide support services) supported the conclusion that the AP Act permitted Z.B.’s long term detention. [ 77 ] The referenced sections read as follows: 10.

(1) There shall be a Provincial Director of Adults in Need of Protective Intervention who shall … (

c) where ordered by the court or otherwise under the authority of this Act, maintain custody of persons who are or may be adults in need of protective intervention. 20. (1) … the director (

a) may … (iv) provide or arrange for support services consistent with the service plan prepared… [ 78 ] In comparison, Z.B. asserts that the legislative scheme of the AP Act as a whole is to provide the least intrusive measures that will adequately address the adult’s needs while ensuring their protection and safety; Z.B. suggests that this scheme does not support the broad

interpretation favoured by the Respondents. [ 79 ] I turn next to consider the context provided by other sections of the legislation. [ 80 ] As a principle of statutory

interpretation, the Court can presume that the legislation avoids superfluous or meaningless words and that the legislature’s choice of language was deliberate and meaningful (Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed. ( Markham, Ont.: NexisLexis Canada, 2014) at p. 210) . [ 81 ] A court may make an order under

section 19 (the investigative stage) if satisfied that it is “required to assess the adult who is the subject of the investigation …”. [ 82 ] In comparison, the language used to support a warrant to enter under

section 17 is “evidence on oath that there are reasonable grounds to believe that entry … is necessary to assess the person …”. For a warrant to remove,

section 23 requires the court to be satisfied that “a less intrusive course of action that would adequately protect the adult is not available”. [ 83 ] As is apparent, the language for the three types of orders is different; the most onerous test and the greatest procedural safeguards apply to a warrant to remove. Charter Values [ 84 ] In J.(J.)(Re) , 2005 SCC 12 , [2005] 1 S.C.R. 177 , the Court explained the significance of judicial review of state action where a vulnerable adult has been deprived, at the instigation of the state, of the right to function autonomously.

At paragraph 23 it stated: The court’s statutorily assigned supervisory role emerges from the adult’s vulnerability. The corollary of a judicial determination that an adult is in need of protection is a corresponding limitation on that adult’s autonomous decision making and liberty. It is the function of the court to monitor the scope of that limitation. The legislation must, therefore, be interpreted in a way which acknowledges the intrusiveness of the determination and offers muscular protection from the state intervention incompatible with the adults welfare … . [ 85 ] Statutory

interpretation must be consistent with Charter values of liberty and security of the person. It follows that deprivation of liberty is too significant a remedy to be inferred or “read into” legislation. The CYCP Act [ 86 ] As a comparator, the CYCP Act contained similar provisions for removal of a child where “a less intrusive course of action that would adequately protect the child is not available” ( section 20(1) (b)). For youth, sections 21(1) (

b) and (

c) required the additional condition that the “youth is unable to protect himself or herself due to a lack of mental capacity”.

In either case, notice was required within 24 hours after removal, an application for a protective intervention hearing was required to be held no later than 30 days after removal and in the interim a presentation hearing was required not later than 10 days after the application was filed (sections 23, 26 and 27 ). [ 87 ] These provisions of similar legislation in effect at the time of the Order, recognize the need for due process and support the least intrusive measures to protect the child or youth.

Legislative History and the Perceived Mischief [ 88 ] The AP Act repealed and replaced the Neglected Adults Welfare Act , R.S.N.L. 1990, c. N-3 . This predecessor legislation did not contain provision for warrants to enter or remove. It contemplated an investigation to follow any report of ill-treatment and on completion of that investigation, an application could be brought for a declaration that the adult was a neglected adult ( sections 4 - 6 ).

An application for a declaration of neglect required notice to the adult “at least 10 days before the date set for the hearing” (section 6(2)). [ 89 ] The only provision for orders during the investigative stage was found in

section 8. This contemplated a temporary custody order for removal of the adult to a hospital or other place without delay in limited circumstances if a medical practitioner certified that it was necessary to do so in the interest of the adult. [ 90 ] The official record of the House of Assembly Proceedings for April 5, 2011 ( Hansard , Vol. XLVI, No. 10, April 5, 2011) is of some assistance to the interpretive exercise and the “mischief” that the AP Act was designed to address. The debate confirms that:

- the AP Act was aimed at protection while honouring an individual’s right to make his or her own decisions; - the proposed procedural steps included provision for the protection of the adult’s rights through due process requirements of notice of time and place; - the proposed AP Act was acknowledged by the opposition to be more modern in its approach and was more human rights-oriented.

Specifically it was noted that since protection of an adult may be required for only a short period, a declaration should be reviewed annually, time lines must be honoured and matters should proceed in a timely fashion; - The social context that lay behind the legislation was largely related to the significant growth of seniors in the province’s demographic and the risks of abuse and ill treatment this vulnerable sector faced. [ 91 ] Consistent with Hansard, within the AP Act an individual’s right to be heard is addressed in

section 7 , and s ections 21 and 23 require the following: • notice of the hearing is to be “served not later than 10 clear days after the date for holding the hearing is obtained” (section 21(4)); • section 21(2) requires a hearing to be “held within 30 clear days of the filing of the application”; and • section 23(11) mandates an application to court within 2 clear days of an adult being removed and requires the court to hear that application within 2 clear days of the mailing of the application. Conclusion on Interpretive Exercise [ 92 ] The context of the surrounding legislative text supports a narrow

interpretation to sections 19-22. It is only

section 23 (which is limited to emergency interventions) where specific provision exists for the authorization of a warrant to remove. The test to be met for an order during the investigative stage is a lower standard. [ 93 ] The applications judge’s conclusion (that the AP Act gave the Respondents the right to detain Z.B. on a long term basis) was based upon a broad

interpretation of sections 19-20 which is inconsistent with both the scheme of the Act as a whole and the context provided by other provisions within the AP Act . [ 94 ] Interpreting sections 19(1)(

f) and 20(1)(

c) narrowly is consistent with the intent reflected in the House of Assembly debates and an acknowledgement of the intrusiveness of a warrant on a person’s liberty. [ 95 ] The words used, the mischief against which the remedial nature of the AP Act is directed, as well as the context of the surrounding legislative text, the related CYCP Act , the social context and Charter values, collectively inform that long term detention during the investigative stage was not intended by the legislature ( Dwyer v.

Bussey , at para. 57 ). [ 96 ] I conclude that in the exercise of his lawful jurisdiction to make an order respecting Z.B.’s care and protection on February 5, 2016, the applications judge made an error of law in his

interpretation of the AP Act and in particular, the purpose of

section 19, the extent of powers that could be exercised thereunder and the extent of “support services” referenced in

section 20. The error in statutory

interpretation could also be characterized as an extricable principle of law in the applications judge’s determination that Z.B.’s detention was lawful. CONCLUSION [ 97 ] For the reasons stated, I would therefore allow the appeal and, had the issue not been moot, I would have granted the order for habeas corpus . COSTS [ 98 ] The primary issue (Z.B’s request for a writ of habeas corpus ) was moot as between the parties. I would exercise discretion to hear the moot appeal because the issues raised herein concern broader questions of process, procedure and statutory

interpretation in the realm of adult protection which have public significance. In such circumstances, no order as to costs is justified. Appeal allowed.