2018 NLCA 6, 2018 NLCA 6

Allison Ash (first appellant/applicant), Stephen Ash (second appellant/applicant) and Jennifer Candow (third appellant/applicant) (17/57) Indexed As: Ash (Re: Proposed Guardian) 2018 NLCA 6 2 C.A.N.L.R. 497 Court of Appeal of Newfoundland and Labrador Welsh J.A. January 24, 2018

Summary: The appellants in an appeal relating to a petition for the grant of Letters of Guardianship of the Person of Andrew Ash, who is a mentally disabled adult applied for directions, as to whether, since there was no respondent to the petition in the Court below, a solicitor should be appointed pursuant to rule 39 of the Court of Appeal Rules , NLR 38/16 to make submissions as a friend of the Court. Held: Application allowed. Welsh J.A.: Given the novel nature of the appeal and the importance of the issue, appointment of a solicitor to make submissions as a friend of the Court is necessary and appropriate.

Without the appointment, the Court would be in the position of hearing submissions from only one perspective on an issue of significant public importance. The application was allowed. Counsel: Melissa Saunders, for the appellants/applicants; Jessica Pynn, for the Attorney General of Newfoundland and Labrador. This application was heard on January 23, 2018 before Welsh J.A.

The following judgment was delivered on January 24, 2018 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] This application for directions relates to an appeal by three individuals who were refused an order from the Supreme Court granting them Letters of Guardianship of the Person of Andrew Ash, who is a mentally disabled adult. The petition was refused on the basis that the Court has no jurisdiction to make the requested order. [ 2 ] Because the proceedings in the Supreme Court were in the nature of a petition, there was no respondent.

In the circumstances, the appellants raised with this Court the question of whether a full canvassing of the issues requires counsel in the role of a respondent.

In the result, the appellants were directed to give notice of the appeal and application for directions to the Attorney General of Newfoundland and Labrador who has responsibility generally for the oversight of provincial legislation. [ 3 ] At the hearing of the application for directions, counsel for the Attorney General advised the Court that the Attorney General did not wish to intervene and that he took no position on the appointment of a solicitor to make submissions as a friend of the Court pursuant to rule 39 of the Court of Appeal Rules , NLR 38/16. [ 4 ] Given the novel nature of the appeal and the importance of the issue, I am satisfied that appointment of a solicitor to make

submissions as a friend of the Court is necessary and appropriate. Without the appointment, the Court would be in the position of hearing submissions from only one perspective on an issue of significant public importance. [ 5 ] The hearing of the appeal set for February 16, 2018 is postponed pending appointment of counsel as a friend of the Court. After the appointment has been made, a request for a new hearing date should be made at counsels’ earliest opportunity. [ 6 ] Finally, as requested during the application for directions, counsel for the appellants has leave to file additional submissions to adjust for new counsel acting on behalf of the appellants. Application allowed .