2021 NUCJ 15, 2021 NUCJ 15

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Public Guardian v. A.B. , 2021 NUCJ 15 Date: 20210310 Docket: 23-10-767 Registry: Iqaluit Applicant: Public Guardian for Nunavut -and- Respondent: A.B. ________________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Applicant): M. Rasmussen Counsel (Respondent): B. Kotierk Location Heard: Iqaluit, Nunavut Date Heard: February 26, 2021 Matters: Application to determine the powers of the Public Guardian under s. 11(2) (

h) of the Guardianship and Trusteeship Act , SNWT (Nu) 1994, c 29 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I. INTRODUCTION [ 1 ] A.B. is under the protection of the Public Guardian of Nunavut, by order of this Court, issued January 22, 2015. [ 2 ] As the order was getting close to expiry, the Guardian commissioned a new Assessment report by Dr. Tania Stirpe (C. Psych.) to determine whether A.B. still requires the support of the Guardian in his everyday life.

The report confirmed the earlier diagnosis of Borderline Intelligence and Antisocial Personality Disorder and that he is still in need of support in many activities of daily living. The Guardian applied to the Court to renew the Guardianship Order and alerted A.B. that it was doing so. Contained in the package of information given to A.B. was a brochure about the Legal Services Board of Nunavut (LSB), a publicly funded Legal Aid program. [ 3 ] A.B. contacted the LSB and requested assistance regarding the renewal.

The Public Guardian objected to A.B.’s capacity to retain counsel but agreed to permit the LSB to act on his behalf. [ 4 ] The LSB brings this application arguing that A.B. should be able to retain them with or without the consent of the Public Guardian. II. STATUTORY REGIME [ 5 ] The Guardianship and Trusteeship Act (the Act ) is a comprehensive legislative scheme to enable the appointment of a guardian to ensure protection of vulnerable people who cannot properly care for themselves.

It lists the powers that may be given to a guardian, depending on the abilities of the subject of an order (the represented person). The specific power in dispute in this case is contained in s. 11(2) (

h) of the Act : “the Guardian may ... commence, compromise or settle any legal proceeding involving the represented person that does not relate to the estate of the represented person.” [ 6 ] The Guardian says that because it has this power, A.B. is not able to exercise the powers in s. 11(2) (

h) on his own behalf. In fact, the Guardian argues that A.B. is incompetent to retain or instruct counsel for the renewal application. III. POSITIONS OF THE PARTIES [ 7 ] The LSB argues, first, that a plain reading of the listed powers in s. 11(2) (

h) does not include this application, in which A.B. is not starting, compromising, or settling a legal proceeding. He wants to “defend” the renewal application commenced by the Guardian. That

is not a power given away in s. 11(2)(h), and he should be entitled to retain counsel to argue against the renewal. [8] The LSB also argues that any other

interpretation would be contrary to sections 7 and 15 of the Canadian Charter of Rights andFreedoms. [9] The Guardian points out that “defend” is left out of the powers in s. 11(2)(

h) because the civil Rules already require anyone whowants to sue the subject of such a Guardianship Order to name a Guardian ad litem to act on behalf of the represented person. [10] Both parties say I should look to the Supreme Court case of Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR27, 36 OR (3d) 418 for the accepted approach to statutory

interpretation required in this case: “The words of

an Act are to be read in theirentire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and theintention of Parliament.” IV.

THE GUARDIANSHIP AND TRUSTEESHIP ACT [11] The Act says, in s. 6, “At a hearing for a guardianship order or for a review of a guardianship order” the person in respect of whomthe application is made “may appear and make representations” (emphasis added). [12] Similarly, s. 13(1) says that, “A represented person ... may, at any time, apply to the Court for a review of all or part of aguardianship order.” [13] It makes no sense for the represented person to be given the power to apply for a review and appear before the Court and makerepresentations on that review (or a mandatory review, as this one is) if the legislature intended that only the guardian could representthe person in that situation.

The legislature did not make an exception for represented persons who have a s. 11(2)(

h) clause in theirguardianship order—they too are entitled to make representations on a review. All represented persons must be entitled to retain counselto assist in making those representations. [14] As LSB counsel points out, there are different levels of instructions required for representation by a lawyer. A.B. may have giventhe instruction to “fight this” application or he may have particular representations he wishes to make. Counsel appearing on his behalfcannot bring frivolous or vexatious arguments before the Court, but beyond that, his counsel is entitled to make his wishes known.

It isup to the Court to consider all of the ramifications of those representations and decide how much weight to give them in any particularcase. V. CONCLUSION [15] The application is granted. A.B. may be represented by the LSB. Dated at the City of Iqaluit this 10th day of March, 2021 ___________________ Justice S. Charlesworth Nunavut Court of Justice