Public Guardian for Nunavut and Public Trustee for Nunavut v SJ, 2022 NUCA 4

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: Public Guardian for Nunavut and Public Trustee for Nunavut v SJ, 2022 NUCA 4 Date: 20220527 Docket: 03-21-011-CAC Registry: Iqaluit Between: Public Guardian for Nunavut and Public Trustee for Nunavut Respondent - and - S.J. Appellant _______________________________________________________ The Court: The Honourable Justice Louise Charbonneau The Honourable Justice Elizabeth Hughes The Honourable Justice Jolaine Antonio _______________________________________________________

Memorandum of Judgment An Appeal of a Review of a Guardianship Order under the Guardianship and Trusteeship Act The Honourable Mr. Justice P.

Bychok Dated the 28th day of May, 2021 ( 2021 NUCJ 25 , Docket:03-20-305GRD) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [ 1 ] This is an appeal of a review of a guardianship order under the Guardianship and Trusteeship Act , SNWT (Nu) 1994, c 29 as amended. [1] The main question on appeal is if the Public Guardian has authority to make decisions about where a represented person lives, does the Public Guardian then have a corresponding duty to provide a residence to the represented person?

Background [ 2 ] SJ is in his twenties and is from Kinngait, Nunavut. [2] In June 2019, the Office of the Public Guardian received a guardianship referral respecting SJ from a community nurse in Kinngait. As a result of the referral, the Office of the Public Guardian arranged for SJ to be assessed.

The Office of the Public Guardian received the Assessment Report, dated February 29, 2020 and as a result, filed a Petition for Guardianship and Trusteeship. [ 3 ] At the time the application was filed, SJ was on remand at the Baffin Correctional Centre in Iqaluit respecting criminal offences alleged to have occurred in Kinngait.

However, when SJ was served the application by an employee of the Office of the Public Guardian, he was on judicial interim release that included two conditions: first, that he “stay inside the Iqaluit’s Men’s Shelter from 10 p.m. to 6 a.m. every night”, and second, that he not go to Kinngait, except for attending court. [ 4 ] The application was originally set for October 22, 2020, in Iqaluit, but when the Office of the Public Guardian learned SJ had to fly to Kinngait on October 20 to appear on his criminal charges, and he would not be returning to Iqaluit until October 23, the application was adjourned until November 12. [ 5 ] When SJ returned to Iqaluit, he continued to reside at the Men’s Shelter as directed by the release conditions. [ 6 ] On November 12, 2020, the Nunavut Court of Justice appointed the Public Guardian to be SJ’s guardian.

The guardianship order provides: THIS COURT DOES FIND AND DECLARE that [SJ] is in need of a Guardian within the meaning of

section 7 of the Guardianship and Trusteeship Act , will substantially benefit from a Guardianship Order, and there is no alternative course of action that is less restrictive and will provide comparable benefits to those provided by a Guardianship Order; THIS COURT ORDERS that the Public Guardian be appointed GUARDIAN for [SJ] pursuant to

section 7 of the Guardianship and Trusteeship Act, AND THAT FOR THIS PURPOSE the Guardian may: 1. decide where the Respondent is to live, temporarily or permanently, in accordance with s. 11(2)(

a) of the Act; 2. decide with whom the Respondent is to live, in accordance with s.11(2)(

b) of the Act; 3. decide with whom the Respondent is to consort, in accordance with s.11(2)(

c) of the Act; 4. decide whether the Respondent should work and, if so, the nature or type of work, for whom the Respondent is to work and related matters, in accordance with s.11(2)(

e) of the Act;

5. decide whether the Respondent should participate in any educational, vocational or other training and, if so, the nature and extent of that training and any other related matters, in accordance with s.11(2)(

f) of the Act; 6. decide whether the Respondent should apply for any licence, permit, approval or other consent or other authorization required by law, in accordance with s.11(2)(

g) of the Act; 7. commence, compromise or settle any legal proceedings involving the Respondent (not relating to his estate), in accordance with s.11(2)(

h) of the Act; 8. consent to any type of health care, in accordance with s.11(2)(

j) of the Act; THIS COURT FURTHER ORDERS AND DIRECTS that: 1. this Order shall remain in force for a period of 5 years or until further Order of the Court; … [ 7 ] Prior to the guardianship hearing, the Office of the Public Guardian contacted SJ’s grandfather in Kinngait who said he was willing to have SJ live with him. This information was provided to counsel for SJ on the criminal charges, Legal Services Board (LSB) [3] .

However, this living arrangement was not feasible unless there was a variation of the terms of SJ’s release order, in that SJ would have been in breach of his release conditions had he returned to Kinngait to live with his grandfather. The Office of the Public Guardian also sought the date of SJ’s “next appearance”. That information was not provided until February 1, 2021 when the Office was advised SJ “has court …on March 8” . [ 8 ] On March 5, 2021, SJ left the Men’s Shelter in Iqaluit to go to court in Kinngait.

Upon leaving the shelter, SJ advised the shelter that he would not be returning, and on that basis the shelter did not hold a bed for him. The Office of the Public Guardian was not advised of SJ’s travel plans nor that SJ had relinquished his bed. [ 9 ] It appears there had been plea negotiations between SJ’s criminal counsel and the Crown prior to the March 8, 2021 appearance and an understanding that SJ would plead guilty to the offences in Kinngait and there would be a joint submission of time served, followed by a period of probation.

This would have resulted in a lifting of the release conditions that prevented SJ from living in Kinngait with his grandfather. However, SJ pled not guilty, the trial was adjourned to Iqaluit, but due to the conditions in the release order SJ was not permitted to stay in Kinngait. [ 10 ] On March 15, 2021, the Office of the Public Guardian learned that SJ had returned to Iqaluit, no longer had a bed at the Men’s Shelter and was staying at another shelter, the Damp Shelter.

The Office began to make multiple efforts to find a more permanent residence for SJ in Iqaluit but without success. [ 11 ] On March 17, 2021, the Office of the Public Guardian received a letter from the Chief Legal Officer of LSB demanding that “the [Office of the Public Guardian] immediately secure shelter for [SJ], at minimum and not restricted to, immediately securing temporary shelter for him at a hotel in Iqaluit and to ensure his safety at this placement, until a more permanent solution by the [Office of the Public Guardian] is secured”.

The letter also stated that “…LSB’s position is that the [Office of the Public Guardian], and the specific guardian, have a fiduciary and positive duty to ensure the safety and well-being of the represented person, including a positive obligation to secure shelter, as outlined in the Act and corresponding Order .” [ 12 ] On March 19, 2021, LSB acting on SJ’s behalf filed a mandamus application seeking to compel the Office of the Public Guardian to provide a residence for SJ.

That same date, the Office of the Public Guardian learned from SJ that his civil and criminal lawyer had put him in the hotel. [ 13 ] On March 21, 2021, LSB advised the Office of the Public Guardian that SJ was staying at a hotel in Iqaluit until the mandamus application could be heard. This living arrangement was in breach of SJ’s release order and was not consented to by the Office of the Public Guardian.

At some point SJ was asked to leave the hotel and he stayed with a friend in Iqaluit for a brief time. [ 14 ] On April 1, 2021, the mandamus application was struck for deficiencies in the originating application. The court advised counsel for the LSB that they could file a new originating application or file an application under section 13(1) of the Act for a guardianship review. [ 15 ] On April 16, 2021, the LSB acting on SJ’s behalf filed an application under section 13(1) of the Act for a guardianship review. The guardianship review application sought three types of relief.

First, a series of declarations regarding the

interpretation of section 11(2) of the Act : 1. a declaration that the powers of the Public Guardian as set out in s 11(2) of the Act create a positive duty on the part of the Public Guardian; 2. a declaration that the Public Guardian has not exercised their powers under s 11(2)(

a) and s 12 of the Act as provided for in s 14(1) (

a) of the Act ; and 3. a declaration that s 11(2) of the Act is not satisfied by a person living at a shelter. [ 16 ] Second, that the court issue a direction to the Office of the Public Guardian that it “take all reasonable and necessary positive steps required to access the services and supports the represented person requires to be successful to ensure the highest quality of life including but not limited to identifying gaps in services, accessing services, advocating for access to services, and any other services

deemed necessary to ensure the wellbeing of the represented person”. [ 17 ] And third, several variations to SJ’s guardianship order imposing reporting requirements on the Office of the Public Guardian. [ 18 ] As noted above, through March and April 2021, the Office of the Public Guardian took a number of steps to try and secure other housing for SJ, which included attempts to contact SJ’s criminal counsel to make an application to vary SJ’s release conditions so that he could go live with his grandfather. The Office of the Public Guardian made known that they would be an ally and work with criminal counsel.

In response, SJ’s criminal counsel detailed why they believed a variation application would be unsuccessful. [ 19 ] On April 12, 2021, the Office of the Public Guardian retained other counsel to make an application to vary SJ’s release conditions, one of the reasons being their concern that SJ was in breach of his release conditions. [ 20 ] At the time of the hearing of the review application on April 29, 2021, SJ was living at the Damp Shelter in Iqaluit. [ 21 ] Between the hearing of the review application and the rendering of the decision, SJ’s application to vary his release conditions was granted on consent which permitted him to live with his grandfather in Kinngait.

Public Guardian for Nunavut and Public Trustee for Nunavut v SJ , 2021 NUCJ 25 [ 22 ] In his reasons, the application judge noted that while the practical issue of SJ’s living situation had been addressed (in that SJ was no longer living at the shelter), he would go on to address the merits of the application as it raised issues of importance: para 10. [ 23 ] The application judge held that there were four issues before him, of which only the first three are relevant to this appeal: 1. Does s 11(2)(

a) of the Act create a positive duty on a guardian to provide shelter to its ward? No (paras 16-29). 2. Did the Public Guardian fail to exercise its powers by failing to provide shelter for SJ? No (para 30). 3. Does a guardian fulfill its section 11(2)(

a) responsibility by permitting its ward to reside in a homeless shelter? Yes, in this case (paras 31-33). The application was dismissed. The Guardianship and Trusteeship Act [ 24 ] Sections 13 and 14 of the Act govern guardianship review applications and set out the scope of the Court’s powers for review: Application for review 13.

(1) A represented person or any interested person acting on his or her behalf may, at any time, apply to the Court for a review of all or part of a guardianship order. … Court powers for review 14.

(1) On hearing an application for review of a guardianship order, the Court (

a) shall satisfy itself that the conditions referred to in paragraph 7(1)(

b) are still applicable and that the guardian has exercised his or he powers in accordance with the guardianship order and

section 12; and (

b) may amend, terminate, continue, vary or replace the order subject to any conditions or requirements the Court consider necessary. … [ 25 ]

Section 11 of the Act speaks to the powers a court may grant to a guardian in a guardianship order: Order appointing guardian 11.

(1) Where the Court makes a guardianship order, the Court shall grant to the guardian only the powers referred to in subsection (2) that it considers necessary for the guardian to make or assist in making reasonable decisions relating to the personal care and well-being of the person in respect of whom the application is made. Powers of Guardian

(2) In making a guardianship order, the Court shall specify whether the guardian may (

a) decide where the represented person is to live, whether permanently or temporarily;

(

b) decide with whom the represented person is to live; (

c) decide with whom the represented person is to consort; (

d) decide whether the represented person may engage in social activities and, if so, the nature and extent of the social activities and related matters; (

e) decide whether the represented person should work and, if so, the nature or type of work, for whom he or she is to work and related matters; (

f) decide whether the represented person should participate in any educational, vocational or other training and, if so, the nature and extent of that training and any other related matters; (

g) decide whether the represented person should apply for any licence, permit, approval or other consent or authorization required by law; (

h) commence, compromise or settle any legal proceeding involving the represented person that does not relate to the estate of the represented person; (

i) commence divorce proceedings on behalf of the represented person; (

j) consent to (

i) any type of health care other than that referred to in subparagraph (ii) or paragraph (k), or (ii) any type of health care designated by regulation as requiring specific authorization in a guardianship order; (

k) consent to the withholding of or the withdrawal of life-support systems used for the represented person; (

l) make normal day-to-day decisions on behalf of the represented person including the diet and dress of the represented person; (

m) consent to the restraint or confinement of the represented person; (

n) consent on behalf of the represented person to the termination of the parental rights of the represented person; (

o) make or withdraw a direction, on behalf of the represented person, under the Human Tissue Act ; and (

p) decide any other matters as the Court considers necessary. Power of the Court

(3) In making a guardianship order, the Court may (

a) make the order subject to any conditions or restrictions the Court considers necessary; or (

b) restrict, modify, change or add to any of the powers of the guardian referred to in subsection (2) as the Court considers necessary. [ 26 ]

Section 12 of the Act sets out the duties of a guardian: 12. … Duties of guardian

(2) A guardian shall exercise his or her powers and perform his or her duties diligently and in good faith. … Decisions on person's behalf

(6) A guardian shall make decisions on the represented person's behalf in accordance with the following principles: (

a) if the guardian knows of a wish or instruction applicable to the circumstances that the represented person expressed while capable, the guardian shall make the decision in accordance with the wish or instruction; (

b) the guardian shall use reasonable diligence in ascertaining whether there are such wishes or instructions; (

c) a later wish or instruction expressed by the represented person while capable prevails over an earlier wish or instruction of that person; (

d) if the guardian does not know of a wish or instruction applicable to the circumstances that the represented person expressed while capable, or if it is impossible to make the decision in accordance with the wish or instruction, the guardian shall make the decision that is in the best interests of the represented person.

Best interests

(7) In deciding what decision is in the best interests of the represented person, a guardian shall take into consideration, (

a) the values and beliefs that the guardian knows the represented person held when capable and believes the person would still act on if capable; and (

b) the represented person's current wishes, if they can be ascertained. Participation

(8) A guardian shall encourage the represented person to participate, to the best of his or her ability, in the guardian's decisions on his or her behalf. Family and friends

(9) A guardian shall seek to foster regular personal contact between the represented person and supportive family members and friends of the represented person. Consultation

(10) A guardian shall consult from time to time with (

a) supportive family members and friends of the represented person who are in regular personal contact with the represented person; and (

b) the persons from whom the represented person receives personal care. Independence

(11) A guardian shall, to the extent possible, seek to foster the independence of the represented person. Least restrictive course of action

(12) A guardian shall choose the least restrictive and intrusive course of action that is available and is appropriate in the particular case. Preliminary Matters [ 27 ] There are two preliminary matters we wish to address as we have serious concerns about the procedural history of this matter and whether declaratory relief is available. [ 28 ] The first issue is whether this appeal is moot. SJ’s living arrangements are such that he is no longer living in a shelter.

While the immediate issue of SJ’s living arrangements does not appear to be an issue, we do note that the guardianship order is in force until 2025, or until further order of the court and it is possible that SJ’s place of residence may change in the future. The issue that arose in this case could arise again, with respect to SJ or with respect to another represented person in need of housing. [ 29 ] The second issue is the use of the review powers and whether the lower court had jurisdiction to grant declaratory relief.

Here, we note that the review application was brought by counsel at the suggestion of the trial judge. On an application for review of a guardianship order, the powers of the court are as set out in section14 of the Act and the available relief is set out in 14(1)(b) – a court may amend, terminate, continue, vary or replace the order. Declaratory relief is not contemplated under that provision. [ 30 ] As noted by the trial judge, the declaratory relief sought would have no practical effect on SJ’s living arrangement at this time.

That being said, we acknowledge these issues were not raised on appeal and we will deal with the merits of the appeal as argued. Grounds of Appeal [ 31 ] The appellant makes a number of arguments on appeal, but the main ground of appeal can be framed as whether the application judge erred in interpreting sections 11(2) and 12 of the Act .

The appellant also argues that the application judge improperly relied on SJ’s criminal file, failed to address the question of whether the Office of the Public Guardian fulfilled its duties in this case, misapprehended Hansard evidence, and improperly took judicial notice of the role of the Office of the Public Guardian.

Discussion [32] The primary issue on appeal is one of statutory

interpretation; statutory

interpretation is a question of law reviewed forcorrectness: Housen v Nikolaisen, 2002 SCC 33 at para 8. [33] Statutory

interpretation involves reading the words of the Act in their entire context and in their grammatical and ordinarysense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: EA Driedger, Construction ofStatutes, 2nd ed (Toronto: Butterworth & Co, 1983) at 87 quoted in Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1SCR 27 at para 21 and Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 at para 26. [34] The appellant argues that when sections 11(2) and 12 are read together, where the Public Guardian has the authority to makea decision about where a represented person lives, the Public Guardian also has a duty to provide a residence to that person.

Theappellant argues that this

interpretation follows from a “legislative gap”: if the Public Guardian only has the power to make decisionsthen it is reliant on others to bring forward proposals, and if no proposals are brought forward then no services would be rendered to therepresented person. Thus, in this case because the Public Guardian has the authority to make decisions about where SJ lives, it has acorresponding positive obligation or duty to provide a residence to SJ. [35] The respondent argues that the ordinary meaning of sections 11(2) and 12 of the Act do not support the proposedinterpretation and the lower court was correct.

The respondent argues that the role of a guardian is to assist an individual who lackscapacity to make certain decision, but it does not impose on a guardian the obligation to provide things in relation to which decision-making authority is granted. Duties of the Public Guardian [36] The relevant sections of the Act are sections 11 and 12, set out above. Other sections of the Act also inform the

interpretationof sections 11 and 12. [37] A “guardian” is defined in

section 1 to mean “a person named as a guardian or alternate guardian in a guardianship order or aperson who becomes a guardian or an alternate guardian by the operation of this Act”.

Section 8 provides that there are two types ofpersons eligible to be a guardian: (

i) any adult who consents and meets the requirements of section 8(1)(a), or (ii) the Public Guardian.The duties owed by a guardian, whether a private guardian or the Public Guardian, are set out in

section 12. In other words, wheninterpreting

section 12 of the Act, that

interpretation applies to both private guardians and the Public Guardian. [38] Prior to issuing a guardianship order, the court must review certain information and be satisfied as to certain facts.

Section 2sets out that a report in the prescribed form must accompany an application for guardianship. The report must state the opinion of itsauthor respecting the ability of the adult by him or herself, or with the assistance of another, to understand information that is relevant tomaking decisions concerning health care, nutrition, shelter, clothing, hygiene or safety, and the adult’s ability to reasonably foresee theconsequences of decisions based on this information. [39]

Section 7 permits a court to grant a guardianship order when it is satisfied the necessary requirements are met and an adult isin need of a guardian because the adult is unable to understand information that is relevant to making a decision respecting their healthcare, nutrition, shelter, clothing, hygiene or safety, nor are they able to appreciate the reasonable foreseeable consequences of thesedecisions.

Section 7(1.1) provides that a court shall not make a guardianship order if it is satisfied that an alternative is available that “isless restrictive of the decision-making rights” of the adult. [40] Section 11(1) speaks to the powers a court may grant to a guardian to “make or assist in making reasonable decisions relatingto the personal care and well-being” of the adult. Section 11(2) lists the specific powers that may be included in a guardianship order, forexample, 11(2)(

a) speaks to the power to decide where the adult is to live. [41]

Section 12 also speaks to a guardian making decisions, including encouraging the adult to participate in the decision making,and fostering, to the extent possible, the independence of the adult. [42] The object of the Act is clear: the guardian is to “diligently and in good faith” make or assist in making decisions on behalf ofthe adult in those areas for which the guardian has the requisite powers. Thus, when section 11(2) is read in its grammatical and ordinarysense, its meaning is also clear.

Section 11(2) itself does not impose any duties on a guardian, it merely lists the types of powers that maybe included in a guardianship order, nothing more. Rather, the duties of a guardian are found in

section 12 which provides direction to aguardian respecting how they are to carry out their decision-making functions. [43] Where a guardian is authorized to make decisions for the represented person, there is no corresponding positive obligation orduty on the guardian to provide the thing (such as a residence) over which they have decision making power. Indeed,

section 21 of theAct suggests the opposite in that it allows a guardian to purchase necessaries for an adult without the adult’s consent and provides thatthe adult or the trustee of the adult’s estate is to reimburse the guardian. [44] The appellant submits that an excerpt from the debate in the Legislative Assembly in 1994 respecting the Act supports theproposed

interpretation that the Act tasks a guardian with a positive obligation or duty with each decision-making power they aregranted.[4] We do not agree. The application judge did not misapprehend the nature of this evidence. When the debate is reviewed as awhole, it is clear the Minister was responding to whether a

preamble should be included in the Act. The Minister was not “tasking”guardians with positive obligations as submitted by the appellant. [45] In conclusion, the trial judge did not err when he found that section 11(2) of the Act does does not impose on a guardian apositive duty to provide things in relation to which decision-making authority is granted. The other issues on appeal

[ 46 ] There is no merit to the argument that the application judge improperly relied on SJ’s criminal file, or that the trial judge erred in that he did not make any findings as to whether the Office of the Public Guardian had fulfilled its duties under

section 12 of the Act . [ 47 ] To the extent the trial judge referred to SJ’s criminal file and the conditions of SJ’s release order, that information was contained in the affidavits placed before him. The release conditions were part of the factual matrix that the application judge was required to consider when determining whether the Office of the Public Guardian fulfilled its duties in accordance with

section 12 of the Act . [ 48 ] In addition, the Office of the Public Guardian was bound to comply with the terms of the original release conditions of SJ’s judicial interim release which required SJ to reside at the Shelter in Iqaluit. Furthermore, “residence” is defined in

section 1 of the Act to mean “any place located within or outside Nunavut, for the care, treatment or housing of a represented person…”. A shelter falls within that definition. [ 49 ] A judge’s reasons are to be interpreted as a whole and read generously: R v REM , 2008 SCC 51 at para 16 ; R v GF , 2021 SCC 20 at para 69 . The trial judge, when his reasons are read as a whole, did make the necessary findings of fact for this court to conclude he found that the Office of the Public Guardian had fulfilled its duties under

section 12 of the Act . Specifically, the trial judge found at para 22 that “[t]he record clearly demonstrates the Public Guardian has positively sought out realistic solutions to address SJ’s circumstances.” In addition, in answering the question whether a guardian fulfills its responsibilities by permitting an adult to reside in a homeless shelter, the trial judge said at paras 32 – 33: …All Nunavummiut are aware of the tremendous deficit in public housing across the Territory, including in Iqaluit.

The record before me shows that the Public Guardian advocated strenuously and exhausted all available options on S.J.'s behalf with those Iqaluit-based agencies in a position to assist. In any event, S.J. was required by his court-ordered bail order to live at the Shelter. One cannot fault the Public Guardian for a bail order issued in criminal court; an order issued while S.J. was represented by LSB criminal defence counsel; a court order which LSB counsel took no steps to change upon his return to Iqaluit on March 13.

The answer to this question then is yes, the Public Guardian fulfilled its responsibilities by permitting S.J. to reside at the Shelter. [ 50 ] On the issue of judicial notice, we reiterate that the test for when a court may properly take judicial notice of facts is strict and is limited to facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R v Find , 2001 SCC 32 at para 48 .

We agree that the application judge erred in taking judicial notice of the role of the Office of the Public Guardian at para 21 of his reasons, but this had no impact on his

interpretation of section 11(2) of the Act or this appeal. Conclusion [ 51 ] The appeal is dismissed. Appeal heard on May 10, 2022 Memorandum filed at Iqaluit, Nunavut this 27 th day of May , 2022 Authorized to sign for : Charbonneau J.A. Hughes J.A.

Antonio J.A. Appearances: M. Rasmussen, QC for the Respondent B. Kotierk for the Appellant