2020 NLCA 43, 2020 NLCA 43

M.S. (appellant) v. Manager of Child and Youth Services, Zone F (first respondent) and T.D. (second respondent) (20/30) Indexed As: M.S. v. Newfoundland and Labrador (Child and Youth Services) 2020 NLCA 43 6 C.A.N.L.R. 191 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Welsh and Butler JJ.A. December 14, 2020

Summary: This matter involves the suspension of the appellant’s access to her child during the Covid-19 pandemic. As a result of the public healthemergency, the Manager of Child and Youth Services issued a policy directive to temporarily suspend all in-person access betweenchildren in the Manager’s care and their parents. The appellant filed an application seeking, on an emergency basis, reinstatement of heraccess to allow her to breastfeed her child in person. The applications judge denied the appellant’s application for the reinstatement ofher access.

The appellant appealed the applications judge’s decision, arguing that the applications judge made errors of fact and law, andthat the Manager’s decision to suspend her access infringed her rights under

section 7 of the Charter. Held: Appeal dismissed. Welsh J.A. (Fry C.J.N.L. and Butler J.A. concurring): A challenge to the Manager’s decision and the temporary suspension of theappellant’s access to her child, brought at first instance in this Court under

section 7 of the Charter, was not properly before the Court.There was, at best, an insufficient evidentiary record to support the Charter challenge. In the circumstances, the introduction of freshevidence would not be appropriate. The matter was resolved on different grounds, leaving the Charter issue to be considered in a futurecase (paragraphs 9-15). The appeal was moot. The appellant’s access to the child was restored prior to the hearing of the appeal. The tangible and concretedispute before the applications judge had disappeared and the issues had become academic.

The adversarial context was no longerpresent given the passage of time and the change in circumstances. Judicial economy supported the decision not to hear the moot appeal,as it was not a case involving special circumstances requiring resolution. To have proceeded with the appeal in the absence of a disputeaffecting the rights of the parties would have taken the Court beyond its adjudicative role. This was not an appropriate case for the Courtto exercise its discretion to hear the moot appeal (paragraphs 16-28). Cases cited: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3 Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342 Powers v. Mitchell, 2019 NLCA 16, 4 C.A.N.L.R. 231 Z.B. v. Provincial Director of Adults in Need of Protective Intervention, 2020 NLCA 17 Statutes considered: Canadian Charter of Rights and Freedoms,

section 7 Children, Youth and Families Act, SNL 2018, c. C-12.3,

section 31 Rules considered:

Court of Appeal Rules , NLR 38/16, rules 9(6) , 37 Counsel: Riley Moss and Taylor Starrett, for the appellant; Heidi Wells Q.C. and Jacqueline Pelletier Q.C., for the first respondent; Lori Savory (by her agent Riley Moss), for the second respondent. The appeal was heard and decision rendered orally on December 14, 2020 by the Court.

The following judgment was filed on December 18, 2020 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] At issue in this appeal is whether a challenge pursuant to the Canadian Charter of Rights and Freedoms is properly before this Court when the question was not addressed in the court appealed from; and, if the answer to that question is no, whether the remaining issues on appeal are moot. [ 2 ] At the hearing, the Court concluded that the Charter issue was not properly before the Court, that the appeal is moot, and that this is not an appropriate case for the exercise of the Court’s discretion to hear a moot appeal.

Following are the reasons for that decision. BACKGROUND [ 3 ] The appellant is the mother of a child born in early 2020. While, at birth, the child was placed in the care of the Manager of Child and Youth Services, the mother had regular access which permitted her the opportunity to breastfeed her child. [ 4 ] On March 18, 2020, the Minister of Health and Community Services declared a Public Health Emergency related to the COVID- 19 pandemic. The Chief Medical Officer of Health issued Special Measures Orders which included significant reductions in in-person interactions.

On March 24, 2020, based on concerns related to limiting the spread of COVID-19, the Manager of Child and Youth Services temporarily suspended all in-person access between children in the Manager’s care and their parents. This followed from the Policy Memorandum issued by the office of the Provincial Director appointed under the Children, Youth and Families Act , SNL 2018, c.

C-12.3 . [ 5 ] On March 30, 2020, the mother filed an application seeking, on an emergency basis, reinstatement of her access so that she could continue to breastfeed her child in person, rather than by providing breast milk for transport to where her child was being cared for. On April 7, 2020, the applications judge proceeded with an inter partes hearing. In his decision of April 9, 2020, he explained: 5. ... On Tuesday, April 7, 2020, [the mother] and her counsel, Ms. Moss, the Manager’s two social workers and her counsel, Ms. Duffy, and counsel for [the Director], Ms.

McLennan, appeared before me by telephone. [The father] was present by telephone for some of the hearing but did not make any representations or provide evidence. ... 10. I considered both the affidavit of [the mother] filed in support of her Application and her oral testimony. I heard oral testimony from the Manager’s two social workers, Ms. North, who is responsible for [the mother’s] file, and Ms. Brown who is responsible for [the child’s] and [the] foster parent’s file. I heard argument from counsel for the Manager, [the mother] and Ms.

McLennan. [ 6 ] In his decision, having reviewed the submissions and evidence of the parties, the judge denied the mother’s application, and provided reasons for that conclusion: 51. My decision is specific to the circumstances of this case. The evidence in this Application establishes that [the mother] has not complied with the public health directives regarding physical distancing and therefore physical access between [the mother and her child] could pose a risk to both [the child] and [the] foster parents. 52.

I make no finding as to whether a breastfeeding mother who does follow public health directives during this pandemic may be able to establish that breastfeeding warrants an exception to the directive. On the evidence before me now, this is not the case. [ 7 ] By way of further background, the Court noted that, on May 4, 2020, there was a presentation hearing, as required by

section 31 of the Children, Youth and Families Act . That decision is not under appeal. On about May 26, 2020, the mother’s in-person access to her child resumed. During the time when the mother did not have in-person access to her child, a process was in place to facilitate her providing breast milk for the child. The Manager’s application for a temporary custody order is proceeding in the Family Court. ISSUES

[8] Reasons for the Court’s decision involve a discussion of (1) whether a challenge pursuant to

section 7 of the Canadian Charterof Rights and Freedoms is properly before this Court; (2) if the answer to that question is no, whether the remaining issues on appeal aremoot; and (3) if the appeal is moot, whether the Court should exercise its discretion to hear the moot appeal. ANALYSIS The Charter [9] The mother submitted that the policy directive, issued as a result of the COVID-19 pandemic, had the effect of temporarilysuspending her access to her child with the result that she was not able to breastfeed the child during that time. She submitted that thepolicy and its effect are unconstitutional because her rights under

section 7 of the Charter were infringed.

Section 7 provides: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [10] A review of the applications judge’s decision and the surrounding circumstances leads to the conclusion that the Charter issue isnot properly before this Court. There are several reasons for this conclusion. [11] First, the mother, who had the onus of establishing a violation of the Charter, did not lay an evidentiary foundation. The natureof the issue is such that expert evidence would most likely be required.

In any event, issues such as the underlying rationale for thetemporary policy directive, whether

section 7 of the Charter may be engaged, and, if so, whether the policy is in accordance with theprinciples of fundamental justice are not matters of which the Court could take judicial notice. In the circumstances, evidence would benecessary to permit an assessment of the possible application of

section 7. [12] While, pursuant to rule 37 of the Court of Appeal Rules, NLR 38/16, there are instances when this Court, on an appeal, maypermit the introduction of evidence, that option would not be appropriate in this case. The applications judge had acceded to themother’s request for an emergency hearing. There was insufficient time to lay the foundation for a challenge under the Charter.

To layan adequate evidentiary foundation, it would be necessary, among other things, to ensure that the Director, who was responsible for thepolicy directive, had adequate notice and an opportunity to adduce evidence and make submissions on the Charter issue. [13] Of particular relevance in this appeal is the determination by the applications judge, based on the evidence before him, that themother had not been complying “with public health directives regarding physical distancing and therefore physical access between [themother and her child] could pose a risk to both [the child] and the foster parents”.

A decision on the possible application of the Charterto the policy directive was, therefore, neither necessary nor relevant since the judge made his decision based on the mother’s conduct,which he found to pose a risk to the child and the foster parents. [14] The circumstances in which the Court will hear a constitutional issue raised at first instance on appeal are discussed in Guindonv. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3. Rothstein and Cromwell JJ., for the majority, explained: [20] ...

Whether to hear and decide a constitutional issue when it has not been properly raised in the courts below is a matter for theCourt’s discretion, taking into account all of the circumstances, including the state of the record, fairness to all parties, the importance ofhaving the issue resolved by this Court, the suitability for decision and the broader interests of the administration of justice. ... [22] The test for whether new issues should be considered is a stringent one.

As Binnie J. put it in Sylvan Lake [2002 SCC 19, [2002] 1S.C.R. 678], “The Court is free to consider a new issue of law on the appeal where it is able to do so without procedural prejudice to theopposing party and where the refusal to do so would risk an injustice”: para. 33. [15] Applying those principles in light of the above considerations, the Court concluded that a challenge to the policy directive and thetemporary suspension of the mother’s access to her child, brought under

section 7 of the Charter, is not properly before this Court. Insummary, there was, at best, an insufficient record. It would be unfair to the Manager and the Director to proceed without providing anopportunity to adduce evidence and make submissions. Finally, the question before the judge was resolved on alternate grounds, leavingthe Charter issue for consideration in the future where it is grounded in an appropriate factual situation. A Moot Appeal [16] The issue of when a court should decline to hear an appeal on the basis that it is moot is discussed in Borowski v.

Canada(Attorney General), (SCC), [1989] 1 S.C.R. 342. Sopinka J., for the Court, set out an analytical framework, at page353: The approach in recent cases involves a two-step analysis. First, it is necessary to determine whether the required tangible and concretedispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessaryto decide if the court should exercise its discretion to hear the case. ... I consider that a case is moot if it fails to meet the “livecontroversy” test.

A court may nonetheless elect to address a moot issue if the circumstances warrant. [17] In this case, applying the first step, the Court was satisfied that the appeal is moot. That is, “the required tangible and concretedispute has disappeared and the issues have become academic”. In reaching that conclusion, reliance was placed on the affidavit of thecase Manager involved in this matter. The affidavit was filed with this Court on October 2, 2020 in accordance with rule 9(6) of theCourt of Appeal Rules, together with a written request which was granted.

Rule 9(6) addresses the provision of current information in anappeal involving a child: Upon application or of its own motion, where an appeal involves a child, the panel hearing the appeal may permit or require a party, byaffidavit, to provide current information regarding the child.

[ 18 ] The information supplied by the case Manager provides necessary context within which to determine whether the appeal is moot. While counsel for the mother indicated, in her request for a hearing date for the appeal, that she opposed the filing of the affidavit, she took no action to further that opposition, to provide an affidavit in response, or to request the opportunity to cross-examine the case Manager on her affidavit.

Accordingly, the Court relied on the information contained in the case Manager’s affidavit. [ 19 ] Although the mother had no in-person contact with her child from March 25 to May 25, 2020, supervised in-person access, permitting a resumption of breastfeeding, was begun on about May 26 th , with increased hours of access in June and July 2020.

Since access has been restored, it follows that the “tangible and concrete dispute [before the applications judge] has disappeared and the issues have become academic”, with the result that the appeal is moot. [ 20 ] Turning, then, to the second step in the analysis, the Court concluded that this is not an appropriate case in which to exercise its discretion to hear the moot appeal. That discretion is “to be judicially exercised with due regard for established principles” ( Borowski , at page 358).

The analysis engages three rationales underlying the exercise of the discretion: (1) the adversarial context, (2) judicial economy, and (3) the adjudicative role of the courts. Sopinka J. cautioned, at page 363: In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three rationales for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion.

The presence of one or two of the factors may be overborne by the absence of the third, and vice versa. [ 21 ] Regarding the first factor, the adversarial context, Sopinka J. explained, at pages 358 to 359: ...

The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. [ 22 ] In this case, the adversarial context is no longer present because the mother no longer has an interest in overturning the decision of the applications judge given the passage of time and the change in circumstances related both to the policy directive and the mother’s access to her child.

Any issues in the future regarding the mother’s access to her child would engage new proceedings and decisions based on the relevant information and circumstances existing at the time. [ 23 ] Considerations relevant to the second factor, judicial economy, are discussed in Powers v. Mitchell , 2019 NLCA 16 : [15] The second rationale to be considered is the concern for judicial economy based on the “need to ration scarce judicial resources among competing claimants” ( Borowski , at page 360).

Examples where it may be appropriate to exercise the discretion to hear a moot case, discussed in Borowski at pages 361 to 362, are: (1) special circumstances warrant resolution of the dispute; (2) a decision, while not resolving the parties’ dispute, will nevertheless have some practical effect on their rights; (3) an important issue of a recurring nature, but brief duration, may evade judicial review because the issue will virtually always disappear before it is ultimately resolved; and (4) the issue is of public importance and its resolution is in the public interest. [ 24 ] In this case, judicial economy supports the decision not to exercise the Court’s discretion to hear the moot appeal.

This is not a case involving special circumstances that warrant resolution of the dispute regarding the temporary suspension of the mother’s access to her child. If a similar issue should arise in the future, evidence that is current could be adduced and appropriate parties, which may include the Director, could be named. As set out above, the issues regarding care of this child are being considered in the ordinary course in Family Court.

Deciding the appeal, particularly where the Charter issue is not properly before this Court, would have no practical effect. [ 25 ] Regarding the third factor, the adjudicative role of the courts, Sopinka J. explained, in Borowski , at page 362: The third underlying rationale of the mootness doctrine is the need for the Court to demonstrate a measure of awareness of its proper law- making function. The Court must be sensitive to its role as the adjudicative branch in our political framework.

Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch. ... [ 26 ] While a policy directive was the genesis of the temporary suspension of the mother’s access to her child, the judge decided the application on the basis of the mother’s conduct, which the judge determined placed the child and the foster parents at risk. Since then, the child’s future care has been and is being addressed on an ongoing basis in Family Court.

Further, given the novelty and uncertainties associated with the COVID-19 virus, government has been concerned to develop evolving appropriate policies covering a broad range of issues, including those affecting children in care. With changes occurring related both to the child’s care and to governmental policies and decisions, it cannot be said that resolution of the appeal is necessary in the public interest as contemplated in the Borowski decision.

In the circumstances, to proceed with the appeal “in the absence of a dispute affecting the rights of the parties” would take the Court beyond its adjudicative role ( Borowski , at page 362). [ 27 ] On this basis, this appeal is distinguishable from the decision in Z.B. v. Provincial Director of Adults in Need of Protective Intervention , 2020 NLCA 17 , which was referenced by counsel. In Z.B. , the Court concluded that, while the appeal was moot, based on the Borowski criteria, it was appropriate to proceed to decide the appeal.

In the circumstances, consideration of judicial economy favoured hearing the appeal where the Court was satisfied that the appeal raised issues of importance to the administration of justice, and proceeding with the appeal would not intrude into the role of the legislature, but rather, could be expected to assist the parties where amendment of the relevant legislation was under consideration. [ 28 ] In the result, the Court concluded that the appeal is moot and, for the above reasons, declined to exercise its jurisdiction to proceed to hear the moot appeal.

SUMMARY AND DISPOSITION [ 29 ] The Court determined, at the hearing, that the Charter issue is not properly before this Court, that the appeal is moot, and that

this is not a situation in which the Court would exercise its discretion to hear the moot appeal. [ 30 ] In the result, the appeal was dismissed. Appeal dismissed.