Nova Scotia (Community Services) v. T.G., 2012 NSCA 43

NOVA SCOTIA COURT OF APPEAL Citation: Nova Scotia (Community Services) v. T.G. , 2012 NSCA 43 Date: 20120502 Dockets: CA 355869 and 375447 Registry: Halifax Between: Minister of Community Services Appellant v. T.G. and R.C. Respondents Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act . Judges: Saunders, Fichaud and Farrar, JJ.A.

Appeal Heard: January 30 and March 22, 2012 in Halifax, Nova Scotia Held: Appeal allowed and the Order on Judicial Review overturned, without costs, and the appeal from the Production and Disclosure Orders dismissed as moot per reasons of Fichaud, J.A.; Saunders and Farrar, JJ.A., concurring. Counsel: Peter C. McVey, for the appellant C. L ouAnn Chiasson, Q.C., and Jean Beeler, Q.C.,for the respondent T.G. M. Jane Lenehan, for the respondent R.C.

PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 94(1) OF THE CHILDREN AND FAMILY SERVICES ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. SECTION 94(1) PROVIDES:

94(1) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child. Reasons for judgment : [ 1 ] R. turns two years old tomorrow. He is forsaken by his birth parents. But his foster mother, T.G., and his sisters ’ adoptive mother, R.C., each want to adopt him.

The Minister of Community Services accepts that both would be excellent parents, but prefers R.C. because R.C. shares R. ’ s racial and cultural background and R. ’ s siblings live with R.C.. The matter never reached the stage of a court application to approve an adoption under ss. 77 - 78 of the Children and Family Services Act . Instead, by a peremptory motion T.G. challenged the adoption process as a violation of her right to procedural fairness.

The judge of the Supreme Court (Family Division) (1) issued an interim injunction against R. ’ s removal from T.G. ’ s foster care, (2) ordered the Minister to produce the Department of Community Services ’ complete file respecting R.C., and (3) ultimately quashed the Minister ’ s decision to place R. for adoption with R.C., as biased and a violation of the Minister ’ s duty of procedural fairness to T.G..

The Minister appeals and submits that the judge had no legal justification to so intrude into the adoption process. [ 2 ] The submissions touched several issues, but they orbit around one question - What standards of procedural fairness to T.G. governed the Minister ’ s choice of an adoptive parent? 1. Background [ 3 ] R. ’ s mother used narcotics through her pregnancy. On May 3, 2010, R. was born positive for cocaine. His father was in prison. At birth, the Minister apprehended R. for protection.

His biological parents have no apparent interest in him, and are not a factor in this proceeding. [ 4 ] Fortunately R. has two strong and capable individuals, T.G. and R.C., who each want to adopt him. [ 5 ] T.G. has been R. ’ s foster mother since May 5, 2010, two days after his birth. She has Masters Degrees in Special Education and Educational Psychology, and is a special needs teacher in the elementary school system. She has fostered over twenty children in her home, and already has adopted a boy, A..

According to T.G. ’ s affidavit, in April, 2010 she told her foster care worker that she wished to be considered for infant foster placements only if the foster child was an adoptive prospect. This was because it was traumatic for her son A. to deal with the departure of foster child companions from their home. [ 6 ] On May 1, 2010 an intake worker with the Department of Community Services asked T.G. about fostering a newborn, scheduled for a caesarian

section on May 3, 2010. According to T.G. ’ s affidavit: 16 I reminded the intake worker of my request only to accept placements if the infant was a long term/ adoptive prospect. I was assured this was the case. ... 17 I was advised that the baby had two siblings currently in care with a foster mother in Jeddore and that there was a prospective adoptive mother for the siblings in Cape Breton.

I inquired as to why the child was not placed with his siblings and was advised that this foster placement was not being considered for him. 18 I further inquired into whether the adoptive mother for the siblings was interested in the baby. I was advised that she was not and that she only wished to consider adopting the two older siblings. [ 7 ] T.G. ’ s affidavit describes R. ’ s arrival:

21 A beautiful newborn baby boy, [R.], was born on May 3, 2010. Upon his release from the hospital at two days old, [A.] and I took him to our home. 22 From the first time I saw [R.], I instantly bonded with him. [A.] instantly bonded with him as well. [R.] is a beautiful child that has added much to our family. [R.] is always pleasant with an infectious laugh which we hear often. He is always on the go but willingly stops to cuddle. He is a delight. [ 8 ] The prospective adoptive parent for R. ’ s siblings, mentioned in paras 17 and 18 of T.G. ’ s affidavit, was R.C..

R. ’ s biological parents had two older children, girls, born in January, 2008 and April, 2009. Their initials also are “ R. ” . To avoid confusion while maintaining anonymity, I will refer to them as the “ elder ” and “ younger ” sisters. Due to their parents ’ ongoing drug use and domestic violence, in January of 2010 R. ’ s sisters were taken into the Minister ’ s permanent care and custody by a court order. In August, 2010, the sisters were placed for adoption with R.C..

According to R.C. ’ s affidavit of September 15, 2011, the scheduled date for the final court approval of those adoptions was to be September 28, 2011. [ 9 ] R.C. is a registered social worker, and her affidavit says she has “ considerable experience in working with individuals with disabilities, mental health issues and addictions ” . R.C. ’ s affidavit discusses her interest in adopting R.: 14. ... I received a telephone call in either February or March of 2010 from Murdoch MacLean. Murdoch MacLean told me that there were two sisters available for adoption and asked if I would consider taking both. 15.

I told him I didn’t even have to think about it and that I would definitely take both children. ... 16. I am fairly certain that during that telephone conversation Murdoch MacLean also told me that the biological mother of the sisters was pregnant again. However Murdoch MacLean did not ask me if I was interested in adopting that unborn child nor did I say that I was not interested in adopting that unborn child. The child had not yet been born and, unlike the child’s sisters, he or she was not available for adoption at that time. ... 20. ...

As soon as I knew that [R.] had been born and taken at birth into temporary care by Community Services (which I learned during the telephone call from Murdoch MacLean in May, 2010 to the best of my recollection) I indicated my interest in keeping up to date on [R.] in case I was in a position to adopt him should he become available for adoption in the future. 21.

Certainly at my August 9, 2010 pre-placement meeting for [the sisters] I made it very clear to everyone at the meeting that if [R.] was placed in permanent care I wanted to be advised immediately so that I could make a decision as to whether or not I was in a position to adopt him and raise the three siblings together. [ 10 ] R.C. ’ s affidavit, para 21, refers to R. being “ placed in permanent care ” .

On May 30, 2011, the Supreme Court of Nova Scotia issued an order placing R. in the permanent care and custody of the Minister (or Agency) under s. 47 of the Children and Family Services Act , S.N.S. 1990, c. 5, as amended ( CFSA ). Only then, was the Minister in a legal position to place R. for adoption. In the remainder of these reasons, “ Agency ” refers to the Minister and Department of Community Services and the Department ’ s employees. [ 11 ] R.C. ’ s affidavit describes the prospect of R. ’ s advent in her household: 25.

We had always kept [R.] in our minds and knew a decision would have to be made if he was put in permanent care. I am fully confident in my abilities and with my support network behind me I know that I can provide a loving, caring, nurturing and safe home for [R.] where he can grow up with his sisters.

... 34. Based on this information I started the transition with my daughters. We talked about [R.] coming to live with us. [The daughters] have seen pictures of [R.] and are very excited about him coming to live with us. 35. Both girls were amazed to see how much he looks like [the younger daughter]. [The younger daughter] initially thought that the pictures were of her and not [R.]. Both girls helped to get [R.]’s room ready. They bought him a gift.

And now they continue to ask when “brother” is coming to live with us, and I cannot give them an answer. [ 12 ] The chronology of representations by the Agency to T.G. was central to the judge ’ s conclusion that T.G. was denied her legitimate expectation to procedural fairness because of the Agency ’ s bias or predetermination. I will quote the critical evidence. [ 13 ] T.G. learned that the prospective adoptive parent of R. ’ s sisters was interested in adopting R..

T.G. ’ s affidavit discusses the point: 35 In August or September, 2010, I was advised by a worker at the Dartmouth office that the adoptive mother of R.’s siblings may have changed her mind and may also be interested in adopting the baby. ... 36 Despite this initial contact, nothing further was communicated to me in relation to the proposed adoptive mother. On numerous occasions I questioned Kathy Lawrence [of the Department of Community Services] and [R.]’s workers as to whether the adoptive mother was interested in caring for [R.].

It was not until April 2011, that one of the workers involved confirmed that the adoptive mother in Cape Breton was definitely interested in adopting [R.]. ... 43 In April 2011 I was advised by Kathy Lawrence that Community Services was seriously considering removing [R.] from my care and placing him for adoption with the proposed adoptive mother in Cape Breton. [ 14 ] R. is racially mixed. One of his birth parents is Caucasian and the other is African-Canadian and Caucasian. R.C. also is racially mixed, as stated in her affidavit: ... I am an African Nova Scotian with Caucasian heritage. My mother is bi-racial.

My grandmother was Caucasian. T.G. is Caucasian.

This is pertinent to R. ’ s adoption chronology because s. 47(5) of the CFSA says: 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. [ 15 ] T.G. was told by the Agency that both this racial preference and the potential for placement with R. ’ s birth siblings were factors that favoured R.C. ’ s application for adoption.

T.G. ’ s testimony confirmed this repeatedly: A. In my conversations with the agency after - after [R.] was four months old and it became known to me that Ms. [C.] was possibly interested in adopting, and I was continually asking, is she continued to be interested, whatever, and I was told again and again, there are

two prospective adoptive families and you need to know that we may - the focus of Community Services was to look at sibling contact and cultural heritage. ... Q. So it would be fair to say, knowing that - because you’ve always known, that the mandate of Community Services is if at all possible to place with siblings, correct? A. Yes ... Q. Now, you spoke just now about your understandings and your beliefs. What you were describing was what you knew at the time. You knew back before Christmas of 2010 those things that you just said, is that correct? A.

That policy, part of the policy was sibling placement and cultural heritage. Yes, I knew that was part of the policy. ... Q. All right. And it says here - I’m going to ask you if you think that’s true or not, it says here that on March 21st, 2011, Ms. Lawrence has written down: “Ms. [G.] stated that she was familiar with the departmental policy on trying to keep siblings together.” Is that probably something you said around that time? A. I have said to people I am aware that part of the policy is to keep siblings contact, yes. ... Q.

You knew on May the 5th [of 2011] that it was possible the department would decide to place [R.] with [R.C.] or the mother caring for his siblings, did you not? A. I knew that if they went by sibling placement and cultural heritage alone, that was a possibility. [ 16 ] From the Agency ’ s perspective, on December 21, 2010, Ms. Kathy Lawrence, a foster care worker with the Agency discussed R. ’ s adoption options with T.G.. Ms. Lawrence ’ s recorded note says: [T.G.] indicated to me that she is very interested in adopting the CIC [child in care] should he become available.

She is aware that this child’s siblings have been adopted together and the adoptive mom has indicated to the agency that she might be interested as well should he become available. [T.G.] too acknowledged that she too understands the provincial policy of placing siblings together and should the adoptive mom want to proceed that the CIC would most likely be placed with her. [T.G.] said that she is prepared to take the risk. She too is aware that since the CIC has been in her home for over 6 months that she would have some standing in family court due to the bonding issues.

She is contemplating seeking legal advise [ sic ] on this.

Ms. Lawrence ’ s recorded note of a discussion with T.G. on March 21, 2011 says: [T.G.] contacted me by phone this afternoon. ... [T.G.] indicated that she plans to be sending a letter to the agency indicating that she would like to make a plan for this child and to make a strong argument for this child remaining with her.

There are other adopted siblings living in Sydney and the adoptive parent wanted to be notified if this child came into permanent care and custody. [T.G.] stated that she is familiar with the departmental policy of trying to keep siblings together. [ 17 ] T.G. wrote a letter, dated April 14, 2011, to Ms. Mary Craig, the Agency ’ s Adoption Program Supervisor, and to Ms. Jill Wilson, Manager of the Agency ’ s Dartmouth District Office.

The letter recites T.G. ’ s understanding that the adoptive mother of R. ’ s siblings is interested in adopting R., and states the reasons that, in T.G. ’ s view, R. should be placed for adoption with T.G. instead. [ 18 ] Ms. Lawrence ’ s note of a home visit to T.G. on May 5, 2011 says: We talked about long-term planning for the child in care. [T.G.] would very much like to adopt this child, if he becomes available, but realizes that this may not be a possibility. [T.G.] would like to have an attachment assessment completed on this child.

She said that her son and the child in care are just like brothers. [ 19 ] As mentioned, on May 30, 2011 the Court ordered that R. ’ s permanent care and custody be with the Agency, enabling the Agency to initiate adoption placement. Under the Agency ’ s Manual of Policy and Procedures - Adoption Manual, Standard 5.15(a), “ the selection of an adopting family for a child(ren) in permanent care and custody by court order or under a

Section 68 agreement must take place at an adoption placement conference ” . This conference sometimes was termed an Adoption Planning Meeting by the witnesses in this case. The Agency scheduled R. ’ s Adoption Placement Conference for June 22, 2011. [ 20 ] On June 1, 2011, the Agency ’ s Mr. Murdoch MacLean telephoned R.C. and informed her of the order for R. ’ s Permanent Care and Custody, issued two days earlier. According to Mr. MacLean ’ s note of the conversation, “ RC has always been interested; but understandably, wants to have all the information on the child before making a final decision ” .

R.C. was out of the Province, so they agreed to meet on her return. They met on June 8 and, according to Mr. MacLean ’ s note, R.C. “ wanted some time to consider this very carefully ” . On June 15, 2011, R.C. confirmed to Mr. MacLean that R.C. wished to adopt R.. These facts appear in the affidavit of Ms. Craig, paras 78-80, and in Mr.

MacLean ’ s recorded notes attached as exhibits. [ 21 ] Section 36(3) of the CFSA says: Where the child who is the subject of a proceeding is known to be Indian or may be Indian, the Mi’kmaq Family and Children’s Services of Nova Scotia shall receive notice in the same manner as a party to the proceedings and may, with its consent, be substituted for the agency that commenced the proceeding.

Further to s. 36(3), the Department of Community Services Family and Children ’ s Services Division Manual of Standards, Policies, and Procedures for Children in Care and Custody , Standard 4.4.1(a), requires that custody of aboriginal children, placed into the Minister ’ s care by the Court, be transferred to the custody of Mi ’ kmaw Family & Children ’ s Services of Nova Scotia. The only exception is when Mi ’ kmaw Family & Children ’ s Services gives a waiver. [ 22 ] Section 36(3) is relevant because, early on, R. ’ s birth mother had told the Agency verbally that R. and his sisters had aboriginal heritage.

When R. ’ s sisters were placed into Agency care, the Agency had written to Mi ’ kmaw Family & Children ’ s Services to request, and then receive, a waiver of custody for the sisters. [ 23 ] For R., the Agency again requested a waiver from Mi ’ kmaw Family & Children ’ s Services.

[ 24 ] Ms. Jill Wilson, District Manager of the Agency ’ s Dartmouth Office deposed: 12. As a result, on September 23, 2010, I wrote to the Executive Director of Mi’kmaw Family and Children’s Services of Nova Scotia, reminding her that her Agency has already waived transfer of custody of two siblings of [R.], and providing additional information regarding [R.] and his family, and further informing her that both [R.]’s current foster mother and the prospective adoptive mother of [R.]’s siblings desire to adopt [R.]. Ms.

Wilson ’ s letter of September 23, 2010 said: Our Agency is currently in a court proceeding with the above named child’s parents. We have put forward a plan for Permanent Care and Custody, and anticipate trial dates sometime in the new year. We have recently signed notices of proposed adoption with respect to [R.]’s older siblings, [R.] and [R.J.]. Your Agency was notified of the girls’ Permanent Care and Custody status and in turn we were notified that you would not be seeking the transfer of their files to your Agency.

I understand that this process may be time consuming and as such I wanted to notify you in advance that we may be in the same situation with [R.] in the near future. [R.]’s mother is bi-racial (African and Caucasian) and claims that her grandmother was part Aboriginal, but did not have status or identify with this culture. [R.]’s father is Caucasian. [R.’s sisters]’ adoptive mother has expressed an interest in being considered as an adoptive home for [R.], should he become available for adoption. [R.]’s current foster mother has also expressed an interest, in putting forward a plan for adoption for [R.] should the Agency be successful in obtaining Permanent Care and Custody.

If an Order for Permanent Care and Custody is granted, with respect to [R.], you will be advised at that time to determine if your Agency would be more suitable to secure a permanent adoptive home for him. If you require further information or clarification on this child please do not hesitate to contact us. [ 25 ] On June 6, 2011, a week after R. ’ s Order for Permanent Care and Custody, Ms. Wilson again wrote to Mi ’ kmaw Family & Children ’ s Services. The full text of the letter is: The above named child has been was [ sic ] ordered into Permanent Care and Custody (PCC) on May 30, 2011.

He is the full sibling to two children; [R.J.] (DOB: April 7, 2009), and [R.J.] (DOB: January 12, 2008), who have African Nova Scotian and Aboriginal heritage. The two children, [R.] and [R.J.], were placed for adoption with an African Nova Scotian family in August 2010. The agency is pursuing adoption placement for [R.] in the same adoption home with his siblings.

Correspondence was forwarded from Raymond Morse legal counsel for Mi’kmaw Family and Children’s Services on September 8, 2010 advising that the Mi’kmaw Family & Children Services did not wish to assume responsibility for the Child Protection proceeding regarding [R.]. However, there was a request to advise the Agency of the outcome of the proceeding. Similar to his siblings, the Dartmouth District Office has not been able to confirm the native status for [R.]. The only information that we have is a verbal comment from the birth mother indicating that [R.] had aboriginal heritage.

Further discussion with the birth mother has not provided us with any specific information including any indication of band identification nor membership. The reference was vague and details could not be provided. In correspondence from Joan Glode, Executive Director, Mi’kmaw Family and Children Services dated July 7, 2010 the Mi’kmaw Agency advised that they would not be seeking a transfer of [R.]’s two siblings and we proceeded to place for adoption.

The baby, [R.J.], is a full sibling and as you have released his two sisters, I am therefore requesting that the same consideration be available for [R.] so that we may proceed to place him for adoption. As the planning process for [R.] is immediate, I am requesting that a response be provided by June 22, 2011. If we have not heard from your agency in that time, we will assume that this agency can proceed with the planning for [R.]. Thank you. [emphasis added] [ 26 ] On June 9, 2011, Ms. Arlene Johnson, Acting Executive Director of Mi ’ kmaw Family & Children ’ s Services of Nova Scotia, wrote to Ms.

Wilson: In response to your letter dated June 6, 2011 in regard to the above-named child Mi’kmaw Family & Children’s Services will not be seeking legal transfer of the child [R.J.] to our Agency. As you have indicated the planning process for [R.] is immediate therefore we wish you all the best in making the appropriate plan by placing [R.] with his two siblings for the purpose of adoption. [emphasis added] [ 27 ] I have bolded the wording in Ms. Wilson ’ s letter of June 6 and Ms.

Johnson ’ s letter of June 9 that, in the subsequent litigation, pertained to the allegation of the Agency ’ s bias. [ 28 ] T.G ’ s Affidavit, paras 49-54, recites the events from the Permanent Care and Custody Order of May 30, 2011 to the Adoption Placement Conference on June 22, 2011. [ 29 ] On May 31, 2011, Agency adoption workers notified T.G. of the status of R. ’ s adoption process. T.G. ’ s affidavit says, of this discussion: 49 On May 31, 2011, Maria Hernandez confirmed that my plan to adopt [R.] would be put forward at the Adoption Committee Planning Meeting.

This is confirmed in the Affidavit sworn by Nicole Blanchard and dated July 19, 2011, at paragraph 75. Ms. Blanchard ’ s affidavit, para 74 and para 75, cited by T.G. ’ s affidavit, says: 74. On May 31, 2011, Maria Hernandez and Kristen Cockerill, adoption workers with the Agency, met with [T.G.]. According to the recordings of Maria Hernandez, which I believe to be true, during this meeting the following occured [ sic ]: a.

The adoption workers discussed with [T.G.] her desire to adopt [R.]; b. [T.G.] stated that she was aware that another family was being considered for adoption of [R.], “but would like her assessment to be considered as well”; c. Maria Hernandez explained to [T.G.] that the Agency must consider adoption placement adoptions in the following order of preference:

i. First, a kinship family and sibling match should be sought; ii. Secondly, a cultural match should be sought; iii. Thirdly, other adoptive placements that are culturally competent should be considered. 75. As a result, on May 31, 2011, [T.G.] was informed of the priorities in which options would be considered.

However, Maria Hernandez did agree to present [T.G.]’s plan for [R.] at an Adoption Planning Meeting, and invited [T.G.] to attend that meeting to speak to the child’s needs. [ 30 ] According to T.G. ’ s affidavit (para 50), on June 16, 2011 T.G. “ was advised by Kathy Lawrence [of the Agency] that the adoptive mother in Cape Breton (of [R.] ’ s biological siblings) was definitely interested in adopting [R.] ” , to which T.G. “ indicated that I was very interested in adopting [R.] as well ” . [ 31 ] T.G. ’ s affidavit then says that, still on June 16, she spoke to the Agency ’ s Ms. Wilson: 51.

On or about June 16, 2011, I spoke with Jill Wilson and asked what I could do to ensure the adoption planning team had all my information (specifically my letter of April 14, 2011) to take to the meeting. Jill Wilson informed me that usually Foster parents are present at the meeting but because I was a prospective adoptive parent that it would be a conflict for me to be at the meeting. 52. Jill Wilson then advised me and I do verily believe that she was going to check with the other participants at the meeting to see if all agreed to have me come and present my case for adopting [R.].

She asked me what time would be convenient and I advised her I would make myself available any time. [ 32 ] T.G. ’ s testimony elaborated on the concern about a conflict of interest, from T.G. ’ s attendance at an Adoption Placement Conference, as Ms. Wilson had explained it to T.G.: Q. So a meeting - when a foster parent - would you agree with me from your own experience, when a foster parent has an input into that process, what they give the department is information about the child, is that - would you agree with that? A. In other cases, yes.

In this case I was told that the conflict arose because my name was being put forth and, therefore, for me to come to the meeting and speak when [R.C.] did not have that opportunity would be a conflict - (

a) a conflict of interest because I had an invested interest in what took place. [ 33 ] T.G. ’ s affidavit then recites her communications with the Agency between her June 16, 2011 phone call with Ms.

Wilson and the Adoption Planning Meeting of June 22, 2011: 53 I was then advised by Nicole Blanchard in a telephone call on approximately June 20 th that I was being permitted to attend the meeting. 54 I was advised by Nicole Blanchard on various occasions (and as late as June 16, 2011) that a final adoption decision had not been made and that the final decision would be made at the meeting scheduled for June 22, 2011. This is confirmed in the Affidavit of Nicole Blanchard dated July 19, 2011, at paragraphs 82, 110 and 111.

[ 34 ] Ms. Blanchard ’ s affidavit, para 82, cited by para 54 of T.G. ’ s affidavit, says: 82. Further on June 16, 2011, I spoke with [T.G.] informing her of the date and time of the Adoption Planning Meeting, and explaining to her the purpose of the meeting. In particular, I explained to her that a final adoption decision would be made on that date with respect to [R.], and she was invited to participate. [ 35 ] Next we come to the Adoption Placement Conference of June 22, 2011.

The minutes show that those in attendance included numerous Agency employees, T.G. and another individual I.G., T.G. ’ s brother who attended to give her support. R.C. was not there. [ 36 ] T.G. ’ s affidavit discusses the Adoption Placement Conference of June 22, 2011: 55 On June 22, 2011, I met with the Adoption Planning Team to discuss the adoption placement for [R.]. Attached hereto as Exhibit “D” is a copy of my letter I provided to the Adoption Planning Team.

I attended this meeting with my brother, [I.G.]. 56 I was advised by the Adoption Planning Team that they had two concerns related to the placement of [R.] for the purposes of adoption: 1) contact with siblings and 2) cultural heritage. 57 I advised the team that I have every intention of ensuring [R.] knows his biological family and that I will foster relationships with his siblings and other family members. [ 37 ] The letter cited in para 55 of T.G. ’ s affidavit, dated June 22, 2011, is three and a half pages and expresses T.G. ’ s heartfelt view that R. ’ s interests would be better served with T.G. than with the adoptive mother of R. ’ s siblings. [ 38 ] T.G. ’ s testimony explained how she presented her submissions to the Adoption Placement Conference at the meeting of June 22: Q. ...

So you came - you came in with a prepared written statement that is dated June 22, 2011, is that correct? A. I came in with a statement, yes. Q. It was written? A. By me. Q. Yeah. And you handed it out. You had made - brought lots of copies and you handed it out to participants. A. Yes. Q. And just to be clear, I’m going to ask you just to flip for a moment to tab 7 of the same document. It is three pages plus a bit. It’s dated Wednesday, June 22nd, 2011. On the last page appears to have your signature, is that correct?

A. Yes. Q. Okay. So this is probably the document that you came, you brought, and you handed out to the adoption placement meeting on June the 22nd, would you agree? A. It is. Q. Okay. Now, has just been - I’ve just read from the minutes, you had a prepared document but you also gave verbal information, is that right? A. Not a lot, no. I knew I had to follow this because of my - I am - I knew I was so strongly invested and emotionally behind this meeting that I felt it prudent to read from a document so that I wouldn’t get sidetracked in my own thoughts.

I started with basically a salutation of, you know, hello, how are you, and I apologized for reading from a document, but I felt that was the best way to present myself. I - from beginning to end there was very little moving away from my letter. There were interjections by Therese Henman-Phillips and Mary Craig, at which time I would respond to whatever was said, but, for the most part, I read from this. [ 39 ] The minutes of the June 22 meeting recite T.G. ’ s submissions.

They include T.G. ’ s comments concerning the Agency ’ s preference for a placement with siblings: “It would be difficult for one person to look at the high needs of the 3 children according to [T.]” “Goes beyond genetic connections.

Why are you considering this - adoptive parent is now interested and can manage the 3.” “This wiill [ sic ] result in a loss for [A.] and [R.] just so [R.] can go with siblings that he does not know.” “Ms.[G.] stated that she is asking that we look beyond policy and procedures.” “[T.] said that the adoptive mother was not interested.” “We differ in our definition of siblings according to [T.].” “[T.] asked if the adoptive parent for [R.’s sisters] is she aware that she is attached to [R.] and want to make a permanent plan for him. [T.] said ‘I can’t help but think that perhaps the adoptive mother might think differently once she has all of the facts’.” [ 40 ] The minutes of the June 22 meeting state that the Agency representatives explained the Department of Community Services ’ rationale for the preferences for sibling placement and common culture and heritage: Mary Craig provided information to [T.G.] and the Adoption Planning team the reason we look at placements with siblings.

Mary Craig stated that we are required by policy to consider the placement of children with siblings. This policy is based on research. Mary explained that children who are now older are expressing concerns about their lives in care and adoption and are asking “why wasn’t I placed with my brothers and sisters, why was this not considered, why did I not know that I had siblings...” Mary explained that children get a lot of comfort from their biological connection because their birth parent connection has been severed and children get comfort and reduced anxiety when they know they have birth connections.

... Therese Henman-Phillips talked about the cultural piece for [R.] and Mary Craig reviewed the policy in relation to culture and heritage. [ 41 ] The minutes of the June 22 meeting recite that, after T.G. and her brother left the meeting, the Agency personnel pondered the substance of T.G. ’ s submissions. According to the minutes: (1) they discussed T.G. ’ s comments about R.C. ’ s supposed lack of interest; (2) they discussed “ at length ” , according to the minutes, T.G. ’ s request for an attachment study; (3) they considered “ [w]hy did we not provide visits with the siblings ” ; (4) they discussed the effects of R. ’ s placement on T.G. ’ s son A.

(5) The minutes recite that T.G. did come in with the ‘foster with a view to adopt’ when she started fostering. This is written in her file. [ 42 ] After the Committee discussed T.G. ’ s submissions, the Committee made its final decision, according to the minutes: We discussed the request for an attachment assessment. The majority of the Adoption Planning team agreed that this is not warranted. We discussed the request for the attachment assessment. We all agree that there is a healthy attachment for [R.] with [T.] and with [A.]. We do not need an assessment to tell us that. ...

The Adoption Planning team is in agreement that [R.] be placed for adoption with his birth siblings based on being able to be placed with his siblings and the cultural connection for [R.]. This is pending the approval of the adoptive parent being approved to adopt a 3 rd child with [R.]’s needs. Policy and best practice guides us in this decision. Sibling connections and the ability to grow up in a culturally same home is possible for this child.

We are required to consider these options for children in our placement decisions and we have determined that we are able to achieve these critical elements for [R.] which is placement with his full biological sisters and a cultural match with his adoptive parent and sisters. [T.’s] expressions are real for her and attachment is important - [T.] is right from her point of her view and with no other options however the other priorities of siblings and culture are more critical to give to this child. [ 43 ] Later on June 22, the Agency ’ s Ms.

Blanchard informed T.G. of the Committee ’ s decision. [ 44 ] Over the next few weeks the Agency took some transitional steps for R. ’ s placement with R.C.. 2. The Litigation in the Supreme Court [ 45 ] On July 13, 2011 T.G. filed with the Supreme Court of Nova Scotia a Notice for Judicial Review. Her Notice described the “ Order proposed ” as The applicant requests an order quashing the Minister’s decision to remove the child from the applicant’s care and to place the child with another party and requiring the Minister to consent to the applicant’s application to adopt the child.

The Notice described the “ Grounds for review ” as:

1. The Minister’s decision to remove the child from the applicant’s care and place the child with another party is not in [R.]’s best interest as mandated by s. 2(2) of the Children and Family Services Act and is therefore unreasonable. 2. The Minister’s decision to remove the child from the applicant’s care and place the child with another party was not made within a “reasonable time” pursuant to s. 47(5) of the Children and Family Services Act and is therefore unreasonable.

Section 47(5), cited in the second Ground, is quoted above (para 14). [ 46 ] Also on July 13, 2011, T.G. filed a Notice of Motion that was scheduled to be heard in chambers of the Supreme Court (Family Division) on July 22, 2011. On July 14, 2011, T.G. filed an Amended Notice of Motion.

The Amended Notice described the Motion as: Motion [T.G.], the applicant in this proceeding, moves for an order enjoining the Minister from removing [R.] from her care, for an attachment study to be conducted, and excluding members of the public from the proceeding, prohibiting the publication of the identity and names of the parties, the child, and witnesses, and sealing the court file with respect to this matter . [underlining in original document] The brief for the Motion, filed by T.G. ’ s counsel, elaborated on T.G. ’ s submission: The applicant respectfully submits that the decision of the Minister did not conform with the duty of procedural fairness.

Unlike the M(N.N.) Case [ Nova Scotia (Community Services) v. N.N.M. , 2008 NSCA 69 ], the applicant submits that the procedural difficulties relate to the lack of information surrounding the removal of the child from the only home he has ever known. The Department of Community Services has repeatedly denied the Applicant’s request for an attachment study. It is respectfully submitted that this is a necessary consideration in determining the best interest of the child. ... ...

The applicant is not advocating procedural fairness with respect to hearing from her - she is pleading with the court to acknowledge that a duty is owed to the child to consider all his circumstances including the circumstances which would be canvassed in an attachment study. ... Firstly, the applicant submits that there is an arguable issue to be reviewed. Although the Minister of Community Service’s [ sic ] decisions are only quashed by a reviewing court in exceptional circumstances, the applicant suggests that the facts of this matter are exceptional.

The child was placed with the applicant for the purposes of adoption. She was in fact approved to adopt a second child. The decision to place the child with another caretaker and remove him from her care was made without an attachment study and without consideration of the effects the removal would have on [R.]. [ 47 ] T.G. ’ s Notice for Judicial Review, Motion for the stay or interim injunction and brief did not plead bias by the Agency. [ 48 ] Justice Williams of the Supreme Court (Family Division) heard T.G. ’ s motion on July 22, 2011.

Later that day the judge gave an oral decision that granted an interim injunction based on the Agency ’ s bias. The judge ’ s oral reasons referred to the letter of June 9, 2011, from Ms. Johnson of Mi ’ kmaw Family & Children Services to the Agency ’ s Ms. Wilson (quoted above, para 26), where Ms. Johnson stated:

...we wish you all the best in making the appropriate plan by placing [R.] with his two siblings for the purpose of adoption. The text of the June 9 letter was in the material filed by the Agency in response to T.G. ’ s motion. Ms. Wilson ’ s letter of June 6, 2011 (above para 25), to which Ms. Johnson replied, was not in the record before the judge.

The judge said: Here the correspondence with the Mi’kmaq Family and Children Services agency - or from the Mi’kmaq Family and Children Services agency and the absence of the correspondence that triggered it and the narrowness of the adoption plan referred to in the letter from Ms.

Johnson, who could only be getting her information, based on what is before me, from the Department of Community Services, leads me to conclude that the application for judicial review is of sufficient strength that it could result in the application for judicial review being successful and the remedy sought, the quashing of the decision, being granted. I emphasize could be, could result. ... They said a decision would be made on June 22nd.

They said [T.G.] would have an opportunity to present her views and to have them be considered, and they have correspondence that is available to me that suggests and indicates to me that the decision had been made prior to that date.

In my view those circumstances create a circumstance where the duty of fairness the Department of Community has in the process they chose appears, on the evidence available to me at this time, to have fallen short of what it should be, in its worst light to have been predetermined and biassed in the sense that the decision was made prior to the meeting or hearing that the agency said it would have on June 22nd. ... The injunctive relief will be granted.

The order will be that [R.R.J.] not be removed from the care of [T.G.] and that [R.R.J.] not be subjected to the implementation of transition placement or visits for the purpose of preparing him for placement in an adoption home. [ 49 ] On August 4, 2011, the judge issued an “ Order (Family Proceeding) Stay Pending Judicial Review ” , that stated: NOW ON MOTION of C. LouAnn Chiasson, the following is ordered until further order: 1.

The Nova Scotia Minister of Community Services shall not remove [R.R.J.] from the care of [T.G.] pending further order of the court or agreement of the parties. 2. [R.R.J.] shall not be subjected to the implementation of transition placements or visits for the purpose of preparing him for placement in an adoptive home, it being acknowledged this does not mean there could not be sibling visitation.

The “ Stay ” Order is more accurately described as an interim injunction, which is the term I will use. [ 50 ] Since that Order, R. has remained with T.G. while this litigation has proceeded through to the Court of Appeal. The injunction has frozen his adoption process. [ 51 ] On August 23, 2011, R.C., through her counsel, filed a motion to intervene in the proceeding for judicial review that T.G. had initiated on July 13, 2011. On August 31, 2011, Justice Williams granted the intervention by consent.

[ 52 ] On August 26, 2011, T.G. amended her Notice for Judicial Review to add the ground of bias upon which the judge had relied in his ruling of July 22 for the interim injunction. The amended Notice deleted the former Ground number 2 (alleging that the Minister had misapplied s. 47(5) of the CFSA ) [see above para 14] and added the Ground: 3. The Minister’s decision did not comply with the rules of procedural fairness which resulted in a denial of natural justice which grounds include but are not limited to the following: a.

The Minister did not follow her own plan of action which required an updated assessment of R.C. and approval to adopt the child in question; b. The Minister was not impartial in reaching her decision on June 22, 2011 because the Minister had predetermined [R.]’s placement with R.C. The Minister was biased or, in the alternative, created a reasonable apprehension of bias.

The Amendment deleted the request that the Court order the Minister to consent to the adoption by T.G., and added the following to the “ Order proposed ” : The applicant requests that the decision be declared void ab initio and that the matter be remitted for consideration to a newly constituted impartial panel. As the matter would be reconsidered on a de novo basis, the applicant requests that the process of reconsideration include evidence by way of an attachment study. [ 53 ] On August 26, 2011, Justice Williams heard a motion for directions for judicial review further to Civil Procedure Rule 7.10.

Rule 7.10 provides that a judge “ may give any directions that are necessary to organize the judicial review ” , including settling the record and evidence for the judicial review hearing. He also heard T.G. ’ s motion, filed on August 26, that the Minister produce certain information. The Agency had disclosed the material in the files of its Dartmouth District Office, which was handling R. ’ s adoption. But the Agency had not disclosed R.C. ’ s file material from its Cape Breton Office.

On August 26, 2011 the judge issued an oral decision that directed the Minister to produce the Department ’ s complete file on R.C., and to answer questions respecting some comments in the record that indicated the Agency supported R.C. ’ s adoption application. [ 54 ] The judge ’ s oral decision of August 26, 2011 later was embodied in a written decision ( 2011 NSSC 356 ). Further to the August 26 ruling, the judge issued an Order for Production and an Order for Disclosure, both dated September 1, 2011. [ 55 ] The Order for Production included: It is ordered: 1.

The complete adoption file of the Cape Breton-Victoria District Office of the Department of Community Services in relation to the Respondent, [R.C.], shall forthwith be reproduced and the original file shall be provided to the solicitor for the Minister of Community Services, Peter C. McVey at the Nova Scotia Department of Justice, 5151 Terminal Road, 4 th floor, Halifax, Nova Scotia, B3J 2I6, phone: (902) 424-5332, fax: (902) 424-7158. 2.

Counsel for the Minister of Community Services shall make three (3) true copies of the original file produced pursuant to this Order, the complete adoption file of the Cape Breton-Victoria District Office of the Department of Community Services in relation to the Respondent, [R.C.], and one such true copy of the file shall be provided forthwith to legal counsel for each of the other parties. [ 56 ] The Order for Disclosure directed the Minister to “ forthwith disclose to the Applicant ” [T.G.], the answers to a number of questions involving: the Agency ’ s communications with R.C. and the Mi ’ kmaw Agency, Adoption Manuals and Standards, the “ articles on siblings attachment referenced in the Adoption Planning Minutes dated June 22, 2011", “ the source of the quotation in the paragraph beginning, ‘ Research is telling us that ... ’ , found in Adoption Planning Minutes dated June 22, 2011, at page 7", and the birth certificates of R. ’ s two sisters.

[ 57 ] On December 5, 2011, Justice Williams rendered an oral decision on T.G. ’ s motion for judicial review. This was followed by a written decision January 20, 2012 and a “ corrected ” decision on February 15, 2012 ( 2011 NSSC 497 ). Later in the Analysis (paras. 95- 107) I will discuss the judge ’ s reasons. The judge ’ s Order was dated December 21, 2011. The judge held that the Agency ’ s selection of R.C. was biased and predetermined, which violated the Minister ’ s duty of procedural fairness to T.G.. The judge quashed the Minister ’ s decision.

The Order directed that the Minister convene a new panel to determine R. ’ s adoption placement, gave detailed directions on how that panel should proceed: It is further ordered that: 2. The Minister of Community Services shall forthwith convene a fresh panel of three experienced social workers. This panel shall be composed of two adoption workers and one foster care worker or child in care worker. 3.

The three social workers composing the panel shall be from outside of Central Region and Eastern Region of the Department of Community Services and may, at the discretion of the Minister, be retired social workers. 4. Every attempt shall be made by the Minister of Community Services to identify to the parties the three social workers composing the panel by not later than Monday, December 19, 2011. 5.

These three social workers shall each sign an affidavit confirming that they each have no prior involvement with or knowledge of the child, [R.R.J.], born May 3, 2010, and/or with or of [T.G.], born October 20, 1963, or [R.C.], born July 24, 1965. 6. [T.G.] and [R.C.] shall be treated by this fresh panel as a two-person, short- list of prospective adoptive parents for the child, [R.R.J.], and no other prospective adoptive parent(

s) shall be considered. 7. The mandate of this panel shall be to make a fresh adoption placement decision in relation to the child, [R.R.J.]. This decision shall be made on its merits; that is, it shall be a decision consistent with Section 3(2) of the Children and Family Services Act . This decision shall be made without input or advice from any social workers who are or have worked for the Central Region of the Department of Community Services since January 1, 2010. 8.

Upon being convened, this panel shall be informed that they have the option to retain the services of a psychologist to prepare a Report concerning the needs of the child, [R.R.J.], and the ability of each of [T.G.] and [R.C.] to provide for those needs, including addressing issues of openness in adoption. 9. The discretion to retain or not retain a psychologist shall be exercised independently by the panel, and the panel shall control its own process regarding the commissioning of any such report.

However, the commissioning of any such Report by the panel shall be subject to the following terms and conditions: (i) [T.G.] and [R.C.] shall each be entitled to write to the panel on or before Wednesday, December 14, 2011, stating their reasons why a Report should or should not be commissioned by the panel. Such submissions shall not exceed four (4) pages in length; (ii) The psychologist may be Dr.

Carolyn Humphreys or any other psychologist chosen by the panel; (iii) The Report must be completed and received by the panel by not later than Tuesday, January 31, 2012; (iv) The Report may inform the panel, but the conclusions of the psychologist shall not bind the panel;

(

v) The Report shall be shared by the panel forthwith upon its receipt with legal counsel for each of the Minister of Community Services, [T.G.] and [R.C.]; and (vi) The costs associated with the Report shall be born by the Minister of Community Services. 10. This panel shall otherwise only be provided with the following documents for its review and consideration: (

i) the SAFE Assessment(

s) and SAFE Update(

s) for each of [T.G.] and [R.C.]; (ii) the Social History of the child, [R.R.J.]; (iii) A copy of Section 3(2) of the Children and Family Services Act ; (iv) A copy of the entire Children and Family Services Act ; (

v) A copy of the Adoption Manual of Policy and Procedures , Department of Community Services; and (vi) Such written submissions as may be provided by each of [T.G.] and [R.C.] by not later than Saturday, January 14, 2012. 11. Upon convening, receiving and reviewing all of the documents provided for herein, the panel shall make a decision regarding adoption placement of [R.R.J.] on or before Tuesday, February 28, 2012. This decision shall be reduced to writing by the panel and shall be provided forthwith to each of the following: (

i) Legal counsel for each of [T.G.], [R.C.] and the Minister of Community Services; and (ii) Each of the Cape Breton-Victoria and Dartmouth District

(1) Offices of the Department of Community Services. 12. While the fresh panel is in the process of making its decision and for fourteen (14) days after delivery of the panel’s decision to the persons stated above, the Minister of Community Services shall continue to be enjoined as follows: (i) [R.R.J.] shall not be removed from the care of [T.G.]; and (ii) [R.R.J.] shall not be subjected to the implementation of transition visits for the purpose of preparing him for adoption placement with [R.C.], it being acknowledged that this does not mean there could not be sibling contact.

The injunction shall, however, vacate upon the filing and issuance of an order to that effect, which Order may be filed by any of the parties to this proceeding. The parameters and criteria for the new panel, written in this Order, are silent on R. ’ s racial and cultural heritage. The information to be provided under the Order omits significant material that was in the Agency ’ s case history file for R.. The newly appointed panelists

would not have and, as it later turned out, did not have any direct knowledge of R. except what could be gleaned from documentary review. 3. The Appeals [ 58 ] The Minister appealed the Orders for Production and Disclosure of September 1, 2011, and the judge ’ s accompanying reasons of August 26, 2011 (oral) and September 28, 2011 (written). I will term that proceeding the Disclosure Appeal.

The Court of Appeal heard the Disclosure Appeal on January 30, 2012, and reserved its decision. [ 59 ] The Appeal Books for the Disclosure Appeal did not include a transcript of Justice Williams ’ oral decision of December 5, 2011, or his written decision of January 20, 2012 or the Order of December 21, 2011 on the judicial review. But T.G. ’ s factum, filed December 16, 2011 for the Disclosure Appeal, said: 20 The judicial review hearing was held on September 21 st and 22 nd , 2011.

An oral decision was rendered on December 5 th ,2011, which quashed the decision made by the Appellant on June 22, 2011, on the basis of bias and ordered that the matter of the adoption placement decision be revisited by the Appellant. [ 60 ] At the January 30, 2012 hearing on the Disclosure Appeal, the Court of Appeal was informed that the Minister was appealing Justice Williams ’ judicial review ruling of December 5, 2011 and Order of December 21, 2011. I will term that the Judicial Review Appeal.

At the conclusion of the hearing on January 30, the Court suggested to counsel that, given the child ’ s interest in a speedy disposition, the Minister ’ s Judicial Review Appeal should be heard by the same panel at an expedited hearing date. Counsel agreed. The earliest available hearing date that could accommodate the preparation of a transcript was March 22, 2012. [ 61 ] Shortly before the March 22 hearing, T.G. tendered as fresh evidence the material generated by the reconstituted adoption placement panel that had been directed by Justice Williams ’ Order of December 21, 2011 (above para 57).

The Minister and R.C. opposed the admission of fresh evidence. [ 62 ] On March 22, 2011, the same panel of this Court who heard the Disclosure Appeal heard the Judicial Review Appeal. The Court also heard the submissions of the parties respecting the admission and use of the fresh evidence that had been tendered by T.G.. The Court reserved its decisions on the admission and use of the fresh evidence and on the merits of the appeal. [ 63 ] These reasons address both appeals. 4.

Issues on Appeal [ 64 ] On the Disclosure Appeal, the Minister submitted that the information ordered to be produced under the Production and Disclosure Orders was privileged, and was subject to the Crown ’ s prerogative to decline pre-trial disclosure. The Minister says that the judge erred by issuing those Orders. [ 65 ] On the Disclosure Appeal, and reiterated as a ground on the Judicial Review Appeal, the Minister said that the judge ’ s actions showed a reasonable apprehension of bias. [ 66 ] On the Judicial Review Appeal, a preliminary issue is whether the Court should admit the fresh evidence.

[67] On the merits of the Judicial Review Appeal, I will consider the Minister’s several submissions together under the umbrellatopic - whether the judge erred by ruling the Minister or Agency violated a duty of procedural fairness to T.G.. [68] As to the sequence, before discussing the grounds of appeal, as a preliminary issue I will consider the request to adduce freshevidence. Among the grounds of appeal I will first address the foundational issue from the Judicial Review Appeal - whether the judgecommitted an appealable error in his ruling that the Minister violated a duty of procedural fairness.

Secondly, I will discuss whether thejudge exhibited a reasonable apprehension of bias, argued in both appeals. Thirdly, I will come to the Minister’s objections to the Ordersfor Production and Disclosure, from the Disclosure Appeal. [69] Section 78(1) of the CFSA says that when the court is satisfied of several matters, including that the adoption “is proper and inthe best interests of the person to be adopted”, then “the court shall make an order granting the application to adopt”. By s. 106, thatcourt is the Supreme Court of Nova Scotia.

One future day, there will be an application under s. 78(1), and a judge will be asked todetermine whether the proposed adoption is in R.’s best interests. The proceeding under appeal was not an application under s. 78(1).These reasons mention the “best interests of the child” and interpret the CFSA to address the issues that have arisen in the argument ofthis appeal. Nothing in these reasons should be taken as a pre-determination of the ultimate issue that will arise under s. 78(1). 5.

Fresh Evidence [70] On March 8, 2012, T.G. filed a Notice of Motion with the Court of Appeal for an order permitting the admission of freshevidence. The fresh evidence was an affidavit of T.G. that attached as exhibits: (1) a report dated February 27, 2012 from the Panel thathad been reconstituted further to Justice Williams’ Order of December 21, 2011 (above para 57), (2) a report from Dr.

CarolynHumphreys that Justice Williams’ Order, item # 9, had directed be prepared, and (3) copies of documents that the reconstituted panelhad received or mentioned in its Report. [71] R.C. and the Minister oppose the introduction of fresh evidence as irrelevant to the issues in the Court of Appeal. The Ministerprovisionally submitted a Reply Affidavit of Mary Craig, the Agency’s Adoption Program Supervisor. Ms. Craig’s affidavit disputessome of the assertions in T.G.’s affidavit and adds commentary pertinent to the reports of Dr. Humphreys and the Panel. (

a) Preliminary Issue [72] Before discussing the fresh evidence motion, I will address a preliminary submission. R.C.’s counsel contended that the Courtof Appeal should not have viewed the tendered fresh evidence, even for the purpose of determining whether to admit it. By reading it,according to the submission, the Court of Appeal became tainted by a reasonable apprehension of bias.

When asked if R.C. wasrequesting the panel of the Court of Appeal to recuse because of reasonable apprehension of bias, counsel for R.C. said No. [73] I disagree that a judge becomes tainted by a reasonable apprehension of bias merely by viewing evidence, that is subject to anobjection, for the purpose of determining the admissibility of that evidence. [74] It has long been this Court’s practice on fresh evidence motions to: (1) receive, meaning read or hear, the evidenceprovisionally, which enables the Court to assess whether the evidence satisfies the criteria for the admission of fresh evidence, (2) hearcounsel on the motion to admit the fresh evidence, then (3) decide whether to admit the fresh evidence.

Usually the decision whether toadmit is reserved and included in the Court’s decision on the merits. That is because the relevance of the fresh evidence, a criterion for itsadmission, often is better assessed in tandem with the assessment of the submissions on the merits of the appeal. This has been thepractice approved by this Court and other appellate courts on fresh evidence motions in cases too numerous to cite.

It is the practice thatthis Court followed on this appeal. [75] It is normal that a judge examine evidence that is tendered, and is subject to objection, beside the existing evidence, todetermine whether the tendered evidence is relevant and satisfies the criteria for admission. The issue of relevance and the criteria foradmissibility need context, and can’t be distilled under hermetic seal. In R. v.

Hurley, 2010 SCC 18 , [2010] 1 S.C.R. 637, atpara 17, Justices Rothstein and Cromwell, for the Court, said “the fourth Palmer factor requires an assessment of the new evidence in thecontext of the other evidence adduced at trial”. If the judge rules the evidence is inadmissible, the trial proceeds before that judge who

disregards the excluded evidence. Judges are accustomed to the dispassionate relegation of inadmissible evidence. A judge hears aconfession on a voir dire in a prosecution, excludes the confession as involuntary or under s. 24(2) of the Charter, proceeds with the trialand gives a verdict, sometimes an acquittal, based only on the admissible evidence. An equivalent process to deal with tendered evidencethat is subject to objection happens in criminal and civil courts every day. [76] I reject the suggestion that the panel of this Court is tainted by reasonable apprehension of bias because we viewed the tenderedfresh evidence in order to rule upon its admissibility. (

b) Merits of Fresh Evidence Motion [77] Moving to the fresh evidence motion itself, the test stems from Palmer v. The Queen, (SCC), [1980] 1 S.C.R.759, at p. 775. Admission is governed by four factors: (1) whether there was due diligence in the effort to adduce the evidence at trial;(2) relevance to the issue at trial; (3) credibility of the new evidence; (4) whether the evidence could reasonably have affected the result.The test applies to civil as well as criminal cases: Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44, para 8; United States of America v.

Shulman, 2001 SCC 21 , [2001] 1 S.C.R. 616, para 44; May v.Ferndale Institution, 2005 SCC 82 , [2005] 3 S.C.R. 809, para 107. [78] The evidence must be in admissible form. If it is inadmissible, obviously it could not affect the result under Palmer’s fourthcriterion. R. v. O’Brien, (SCC), [1978] 1 S.C.R. 591, per Dickson, J. at page 602; R. v. Dell, (ONCA), [2005] O.J. 863 (C.A.), per Sharpe, J.A., at para 85; R. v. Kelly, (NB CA), [1999] N.B.J. No. 98 (C.A.), at para71; R. v. Assoun, 2006 NSCA 47, para 302.

A motion to admit fresh evidence isn’t just a generic preview of the type of evidence thatwould be offered, in admissible form, at a future new trial. [79] The four-branched Palmer test applies to issues that were decided at the trial that is under appeal. When the fresh evidencerelates to the process of the tribunal whose decision is appealed, Palmer’s criteria recede and are replaced by a test that asks whether theevidence is “credible and sufficient, if uncontradicted, to justify the appellate court making the order sought”: R. v. Wolkins, 2005 NSCA2, at para 61, per Cromwell, J.A.. See also R. v.

Assoun, paras 297, 316, and cases there cited. [80] In this case the fresh evidence is tendered respecting an issue decided by the judge in the judgment and reasons under appeal,and Palmer’s test applies. [81] Due diligence is not an issue, as the fresh evidence did not come into existence until after the decision under appeal. Neither iscredibility an issue. The tendered evidence is in the admissible form of sworn affidavits by T.G. and Ms. Craig. The questions arewhether the evidence is relevant and could affect the result.

I will consider those overlapping points together. [82] In a child welfare matter, relevance may be viewed through a wide angled lens. This Court has exercised a broad discretion toadmit fresh evidence of the child’s circumstances: e.g. Children’s Aid Society of Halifax v. C.M. et al. (1995), 1995 NSCA 178 ,145 N.S.R. (2d) 161 (C.A.), at p. 167, per Bateman, J.A.; Children’s Aid Society of Cape Breton v. L.M. and B.M., (1998), 1998 NSCA120 , 169 N.S.R. (2d) 1 (C.A.), at para 43, per Cromwell, J.A..

A child’s welfare is ongoing and fluid, an undammed stream,and usually it is better that the Court have the full context. [83] Whether T.G. or R.C. should be the adoptive parent is not an issue before the Court of Appeal. The issue is procedural -whether the Minister violated a duty of procedural fairness to T.G. in the events leading to and culminating in the Adoption PlacementConference of June 22, 2011. [84] I agree with the Minister and R.C. that the fresh evidence should not be received for an issue that is not before this Court - ie. toshow who should be the adoptive parent.

But the fresh evidence may be relevant to the determination of the procedural issues that areappealed. I will discuss that point later (paras 153-54). [85] Accordingly, I would admit the tendered fresh evidence - T.G.’s affidavit of March 8, 2012 with exhibits and Ms. Craig’s ReplyAffidavit of March 19, 2012 - but for the limited purpose of assisting the Court to determine the procedural issues on this appeal.

6. Standard of Review [86] In Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19 , [2003] 1 S.C.R. 226, at para 43,the Chief Justice discussed the Court of Appeal’s role on appeal from a court that conducted a judicial review: At this stage in the analysis, the Court of Appeal is dealing with appellate review of a subordinate court, not judicial review of anadministrative decision.

As such, the normal rules of appellate review of lower courts as articulated in Housed, supra, apply. [87] These normal rules of appellate review are that the judge must be correct on issues of law and not commit a palpable andoverriding error on issues of either fact or mixed fact and law with no extractable legal error: Housed v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras 8, 10, 19-25 and 31-36; H.L. v.

Canada (Attorney General), 2005 SCC 25 , [2005] 1S.C.R. 401, at paras 4, 65, 69 and 72-74. [88] The content of the duty of procedural fairness is a legal issue, for which the Court of Appeal applies correctness to the analysisof the reviewing judge: Communications, Energy and Paperworkers Union of Canada, Local 141 v. Bowater Mersey Paper Co. Ltd.,2010 NSCA 19, para 28; Kelly v. Nova Scotia Police Commission, 2006 NSCA 27, paras 21-33; Nova Scotia (Community Services) v.N.N.M., 2008 NSCA 69, para 40. 7.

First Issue - Procedural Fairness [89] Before examining the judge’s approach, I will outline the principles. [90] A court that considers whether a decision maker violated its duty of procedural fairness does not apply a standard of review tothe tribunal. The judge is not reviewing the substance of the tribunal’s decision. Rather the judge, at first instance, assesses thetribunal’s process, a topic that lies outside standard of review analysis: Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC11 , [2002] 1 S.C.R. 249, at para 74, per Arbour, J.; C.U.P.E. v.

Ontario (Minister of Labour), 2003 SCC 29 , [2003] 1S.C.R. 539, at paras. 100-103, per Binnie, J.; Creager v. Nova Scotia (Provincial Dental Board), 2005 NSCA 9, paras 24-25; Kelly v.Nova Scotia Police Commission, 2006 NSCA 27, para 19; Nova Scotia (Community Services) v. N.N.M., 2008 NSCA 69, para. 39;Allstate Insurance Company v. Nova Scotia (Insurance Review Board), 2009 NSCA 75, para 11; Communications, Energy andPaperworkers Union of Canada, Local 141 v. Bowater Mersey Paper Co.

Ltd., 2010 NSCA 19, paras 30-31. [91] The judge must define the content, or standards of procedural fairness that apply to the particular case. In Kelly, JusticeCromwell said: [20] Given that the focus was on the manner in which the decision was made rather than on any particular ruling or decision made bythe Board, judicial review in this case ought to have proceeded in two steps. The first addresses the content of the Board’s duty offairness and the second whether the Board breached that duty.

In my respectful view, the judge did not adequately consider the first ofthese steps. [21] The first step - determining the content of the tribunal’s duty of fairness - must pay careful attention to the context of the particularproceeding and show appropriate deference to the tribunal’s discretion to set its own procedures. The second step - assessing whether theBoard lived up to its duty - assesses whether the tribunal met the standard of fairness defined at the first step. The court is to intervene ifof the opinion the tribunal’s procedures were unfair. In that sense, the court reviews for correctness.

But this review must be conductedin light of the standard established at the first step and not simply by comparing the tribunal’s procedure with the court’s own viewsabout what an appropriate procedure would have been. Fairness is often in the eye of the beholder and the tribunal’s perspective and thewhole context of the proceeding should be taken into account. Court procedures are not necessarily the gold standard for review.

[92] In Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, JusticeL’Heureux-Dubé set out what have become the guiding principles to define the standards of the duty:

(1) Factors Affecting the Content of the Duty of Fairness 21 The existence of a duty of fairness, however, does not determine what requirements will be applicable in a givenset of circumstances. As I wrote in Knight v. Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653, at p.682, “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”. ... 22 ...

I emphasize that underlying all these factors is the notion that the purpose of the participatory rights containedwithin the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate tothe decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to putforward their views and evidence fully and have them considered by the decision-maker. 23 Several factors have been recognized in the jurisprudence as relevant to determining what is required by thecommon law duty of procedural fairness in a given set of circumstances.

One important consideration is the nature of the decision beingmade and the process followed in making it. In Knight, supra, at p. 683, it was held that “the closeness of the administrative process tothe judicial process should indicate how much of those governing principles should be imported into the realm of administrative decisionmaking”.

The more the process provided for, the function of the tribunal, the nature of the decision-making body, and thedeterminations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protectionscloser to the trial model will be required by the duty of fairness. ... 24 A second factor is the nature of the statutory scheme and the “terms of the statute pursuant to which the bodyoperates”: Old St. Boniface, supra, at p. 1191.

The role of the particular decision within the statutory scheme and other surroundingindications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when thedecision is determinative of the issue and further requests cannot be submitted .... 25 A third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision tothe individual or individuals affected.

The more important the decision is to the lives of those affected and the greater its impact on thatperson or those persons, the more stringent the procedural protections that will be mandated. ... 26 Fourth, the legitimate expectations of the person challenging the decision may also determine what procedures theduty of fairness requires in given circumstances. Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness ornatural justice, and that it does not create substantive rights: ...

As applied in Canada, if a legitimate expectation is found to exist, this willaffect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimateexpectation that a certain procedure will be followed, this procedure will be required by the duty of fairness: ... Similarly, if a claimanthas a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rightsthan would otherwise be accorded: ...

Nevertheless, the doctrine of legitimate expectations cannot lead to substantive rights outside theprocedural domain.

This doctrine, as applied in Canada, is based on the principle that the “circumstances” affecting procedural fairnesstake into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to actin contravention of representations as to procedure, or to backtrack on substantive promises without according significant proceduralrights. 27 Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect thechoices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its ownprocedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: .... 28 I should note that this list of factors is not exhaustive.

These principles all help a court determine whether theprocedures that were followed respected the duty of fairness. Other factors may also be important, particularly when considering aspectsof the duty of fairness unrelated to participatory rights.

The values underlying the duty of procedural fairness relate to the principle thatthe individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting theirrights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social contextof the decision.

[93] Recently in Canada (Attorney General) v. Mavi, 2011 SCC 30 , [2011] 2 S.C.R. 504, at para 42, Justice Binnie for theCourt reiterated Baker’s list of non-exclusive factors. [94] I will turn to the judge’s decision in this case. [95] The judge found: [13] ...

Both homes [of R.C. and T.G.] appear exceptional. [96] The judge framed the issue as turning purely on procedural fairness, not the merits: [14] The first ground of Judicial Review pleaded by [T.G.] asserts that the decision of the Minister is “not in [R.]’s best interests ...”. [15] This Court does not have jurisdiction in this proceeding to re-evaluate the merits of the decision made, to re-visit, to re-do, to re-balance the best-interest analysis done by the Minister. I do not have the jurisdiction to say “yes” the right choice was made or “no” thewrong choice was made.

The first ground of judicial review cannot be said to be unreasonable on its face. The first ground pleaded thusfails insofar as it is a merit-based concern. [16] The assertion in the Notice of Judicial Review at 3(a) - that “the Minister did not follow her own plan of action ...” also fails. As Iwill later discuss, the process for making the decision lies fundamentally within the discretion of the Minister, subject to a duty offairness. [judge’s underlining] [97] The judge referred to Baker’s five factors.

But his reasoning relied almost entirely on Baker’s fourth factor - T.G.’s legitimateexpectations. [98] The judge said that T.G. had a “legitimate expectation” from R.’s initial placement with her in May, 2010. The Agency’s Planof Care for R., an internal document within the Agency, dated August 27th, 2010 read: The baby [R.] is in a foster home with a view to adopt. There is also an interest expressed by the adoptive parents of [R’s sisters] that,pending his availability for adoption, they would very much like to be considered for adoption placement.

The judge said: [97] The evidence before me indicates, and I conclude, that discussions concerning potential adoption were had with [T.G.] when [R.]was placed. At the time, the Dartmouth office of the Community Services believed - perhaps inaccurately given [R.C.]’s evidence - thatthere was no foster or adoptive placement for all three siblings. This was communicated to [T.G.]. The possible adoption of [R.] wasdiscussed by a representative of the Agency with [T.G.]. I accept [T.G.]’s evidence in this regard.

He concluded: [84] I conclude that the placement of [R.] with [T.G.] as a “foster with a view to adopt placement” created a legitimate expectation thatshe, [T.G.], would be looked at as a serious option or choice should [R.] become available for adoption.

[ 99 ] The judge reached this conclusion despite having made the following finding: [82] That said, it is clear, very clear that there could be and were no promises to [T.G.] at the time of [R.]’s foster placement. There was no guarantee that [R.] would be placed in the permanent care and custody of the Community Services and thus become “available” for adoption. There was no guarantee that [R.] would be placed for adoption with [T.G.] (despite her affidavit’s reference being limited to the question of placement with her unless there was a placement with parents).

Other placements were always possible and available, and I am satisfied that she knew and understood that. [ 100 ] The judge moved forward chronologically. He referred to T.G. ’ s affidavit evidence of the phone calls from June 16, 2011 to the June 22, 2011 Adoption Placement Conference (quoted above paras 28-37), and concluded: [125] I conclude that [T.G.] had the same expectation that Ms. Henman-Phillips had - that she would have an opportunity to present her position, her plan at this June 22, 2010 [ sic - 2011] meeting.

As or more importantly, [T.G.] had the expectation and impression that the decision between the two plans had not been made, and that the decision between the two plans would be made at the meeting. I conclude that these expectations were induced in [T.G.] by the actions of representatives of the Minister. [judge’s underlining] [ 101 ] The judge then referred to the following evidence that, before the Adoption Placement Conference of June 22, 2011, Agency employees had expressed a preference for R.C.. In chronological order:

(1) The letter of June 6, 2011 from the Agency ’ s Ms. Wilson to the Mi ’ kmaw Family and Children ’ s Services stated that “ [t]he agency is pursuing adoption placement for [R.] in the same adoption home with his siblings. ” (quoted above, para 25).

(2) On June 15, 2011, the Agency ’ s Ms. Henman-Phillips emailed others in the Agency saying that R.C. “ is in favor of adoption of [R.] fully ” and “ [w]e should book adoption planning to confirm/formalize as well and I guess ensure the foster mother will co operatively work with us on this placement ... ” .

(3) The Agency ’ s Ms. Henman-Phillips emailed the Agency ’ s Sydney office on June 21, 2011: We are having adoption planning on Wed to specify [R.C.] as the identified placement for baby R. The foster mother will be attending so we will hear more on her position/interest which she has expressed and brought forward to management and more history on baby R. Once [R.C.] has been identified/specified, I will arrange for the adoption planning notes to be forwarded to you so that we can move forward with [R.C.]’s update.

(4) The Cape Breton Agency replied on June 22, saying: “ Good to know that you are you are having a meeting to confirm [R.C.] as the identified placement. ”

(5) At the June 22, 2011 Adoption Placement Conference, the Agency ’ s Ms. Craig gave T.G. a package of materials described by the judge (para 138) as related to “ the importance of siblings being placed together, excerpts from articles, internet sources, et cetera ” . The judge said “ this was delivered to rationalize the decision to place [R.] with [R.C.] ” . [ 102 ] Ms. Craig, the Agency ’ s Adoption Supervisor, testified clearly about the Agency ’ s approach, in a passage also noted by the judge (para 135): Q.

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