J.E.D. APPLICANT AND: EASTERN REGIONAL INTEGRATED HEALTH AUTHORITY* RESPONDENT, 2016 NLCA 32

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation : D.(J.E.) v. Eastern Regional Integrated Health Authority , 2016 NLCA 32 Date : 20160630 Docket : 201601H0040 IN THE MATTER OF The Mentally Disabled Persons’ Estate Act, RS.N. 1990, c. M-10 And: IN THE MATTER OF the Guardianship of the Estate of J.E.D. , of Waterford Hospital, St. John’s, in the Province of Newfoundland and Labrador, gentlewoman BETWEEN: J.E.D. APPLICANT AND: EASTERN REGIONAL INTEGRATED HEALTH AUTHORITY* RESPONDENT Coram: Green C.J.N.L.

Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201301E12507 Application Heard: June 21, 2016 Decision Rendered: June 30, 2016 Reasons for Decision by Green C.J.N.L.

Counsel for the Applicant: Jennifer Curran Counsel for the Respondent: Twila Reid Green C.J.N.L.: [ 1 ] The applicant, a voluntary patient in the Waterford Hospital, a mental health institution, applied for an extension of time to appeal an ex parte decision of a judge of the Trial Division made on November 8, 2013 appointing the Public Trustee as guardian of the applicant’s estate and effects on the ground that she was incapable of managing her own affairs. At the conclusion of the hearing, I denied the application with reasons to follow.

What follows are my reasons. [ 2 ] If granted an extension of time to appeal, the applicant will argue, amongst other things, that the application for guardianship was made without notice to her and without giving her an opportunity to be heard.

Had she had that opportunity she says she would have challenged the medical evidence, which had been submitted by affidavit, as being insufficient to establish that she was incapable of managing her own affairs. [ 3 ] The applicant makes the valid point that, as a matter of principle, a person should not have her ability to deal with her own property and assets stripped from her without being able to be heard in opposition. I would also observe that this is especially so where the body applying for the guardianship order can be said to have a financial interest in the outcome.

As a voluntary patient in the hospital, the applicant is required to pay the institution for her accommodation and board. The fact that she was not cashing pension and assistance cheques and not paying the hospital its charges caused the hospital to initiate the guardianship application. [ 4 ] While the Mentally Disabled Persons’ Estates Act , RSNL 1990, c. M-10 specifically allows a person having an interest in the estate of a mentally disabled person to apply for an order ( s. 3 ), that does not mean that the rights of the person potentially subject to guardianship can be disregarded.

Indeed, in such situations, there is arguably a greater reason why the subject to the guardianship application should be involved in the process to the extent her capabilities allow. [ 5 ] The applicant’s submission here is that the current order was made without any attempt at involving her in the process. The Health Authority disputes this and says that the issue of guardianship was discussed with her and certainly was brought to her attention shortly after the order was obtained.

If the matter is to proceed to appeal, this factual dispute would have to be resolved by the appeal court, presumably on the basis of reception of additional evidence. [ 6 ] The applicant also points to the fact that the guardianship application was a pro forma application where the physician filled in the blanks in a form affidavit that simply stated that her medical condition was “schizophrenia” and affirmed the conclusory, standard- form, statement that she was: … incapable of managing her own affairs and, in my opinion, is it unlikely that her condition will ever improve to the extent that she will be able to manage her own affairs in the future and therefore requires a legal guardian to look after her personal financial affairs. [ 7 ] The applicant makes the perfectly valid point that there is no necessary congruence between having a diagnosed mental illness and an automatic inability to look after one’s own affairs.

In the criminal law context, for example, persons diagnosed with serious mental illness such as schizophrenia are often found fit to stand trial and are thus subject to the same criminal process as other autonomous individuals. The applicant’s ability to challenge the physician’s conclusions was, she says, taken away from her by virtue of the nature of the hearing. [ 8 ] It is now two and a half years since the guardianship order was made. The Public Trustee has been administering the applicant’s estate and financial affairs since that time.

It is in this context that I must now consider the appropriateness of extending the time for appealing the order. [ 9 ] The factors that will normally be applied in determining whether, within Rule 57.05 of the Rules of the Supreme Court, 1986 , refusal to extend time “would create an injustice” are: (

i) whether the applicant had a bona fide intention to appeal within the appeal period; (ii) whether there was a reasonable excuse for failure to comply with the time limits set out in the rules; (iii) the potential merits of the appeal; (iv) the presence of any exceptional or special circumstances justifying or working against the fairness of the extension: Fahey v. Law Society of Newfoundland , 2000 NFCA 19 at paragraph 3 . These are not mandatory requirements to be met in each case. They are factors to be considered. Further, they are not exhaustive: Stockwood v.

Hayden, 2010 NLCA 39 , 289 Nfld. & P.E.I.R. 145 at paragraph 13 . In that regard, it is worth noting that Wells C.J.N., in a companion case to Fahey , when considering the factors to be considered in dealing with the similar question of whether an appeal that has been deemed abandoned should be reinstated, listed “timeliness of the application” as another factor: Law Society (Newfoundland) v.

Fahey , 2003 NLCA 8 at paragraph 13 . [ 10 ] The Health Authority disputes the applicant’s claim that she had a bona fide intention to appeal the order within the appeal period by means of affidavit evidence to the effect that she was told of the granting of the order within the appeal period and did nothing about it. Considering the applicant’s circumstances, I would not be prepared to deny an extension for this reason.

There is something of an irony in the hospital asserting for the purposes of obtaining the order that the applicant was incapable of managing her own affairs and then asserting that she was a completely autonomous agent capable of looking out for her own interests by formulating an intention to appeal immediately thereafter.

In any event, there is evidence that the applicant did attempt to consult (although not within the appeal period) a hospital rights advisor about the matter but was told she was not eligible for advice because such service was only available for involuntary patients. [ 11 ] As to the applicant’s explanation for failure to act within time limits, she admits that she was told at some point that she could not handle her own affairs and that the Public Trustee was involved.

Aside from unsuccessfully attempting to consult the hospital rights advisor, she says she was unaware of how to look for legal advice until she contacted Legal Aid in October 2015 and was referred to their Mental Health Office. She has no family or relatives in the province. The Hospital Authority correctly points out, however, that she has

given no explanation of why she did not act expeditiously after October 2015 to attempt to appeal. In normal circumstances, this would certainly be a factor weighing against giving her an extension of time at this late date.

However, given the applicant’s circumstances as a patient in the hospital, the fact that implicit in the guardianship order is certainly the possibility that she is incapable of managing her own affairs and her apparent isolation, without family to whom she could turn for assistance, I would be reluctant to apply too high a standard with respect to this factor and deny her an extension solely on this basis.

While lapse of time without reasonable explanation is important, it is so usually because of the potential for prejudice to others who may rely on the status quo in the meantime that gives significance to delay. [ 12 ] It is when I come to consideration of the remaining factors (merits of the appeal and special circumstances) that I have become satisfied that I should exercise my discretion to deny an extension of time.

The main grounds of the proposed appeal are a denial of procedural fairness with respect to notice of and participation in the application for guardianship and the assertion that there was no sufficient evidence from the pro forma statements in the application for guardianship to justify the order. [ 13 ] Applications for guardianship of persons affected by mental disability or mental infirmity have been treated by the Court in the same way as guardianship applications in respect of infants.

The assumption has been that the subject of the application is incapable in law from being represented in his or her own right but nevertheless that there will be protection afforded by the Court because it is exercising its parens patriae jurisdiction. Applications are therefore made ex parte in the first instance. This has been the invariable practice and, in the case of mentally disabled or infirm persons, certainly seems consistent with the scheme of the Mentally Disabled Persons’ Estates Act (MDPEA).

The Act does not by its language appear to contemplate any role in the process for a person alleged to be mentally disabled or infirm. There is only one provision (s. 19) which appears to recognize that, after the fact, a person made subject to a guardianship order may apply to terminate the guardianship. [ 14 ] There is a distinction, however, between a guardianship application for an infant and one under the MDPEA . In the case of infancy, the fact of infancy is known or can be verified in advance. In contrast, there are a wide variety of circumstances under the MDPEA where a guardian can be appointed.

This extends beyond situations where a person may be “mentally disabled” (s. 3) and includes situations where a person may be incapable of managing their affairs through “mental infirmity arising from disease, age, habitual drunkenness, the use of drugs or other cause” (s. 17). In the case of a person to which the MDPEA may possibly apply, however, the threshold question may very well be in dispute.

It is not as easy, therefore, to assume that the person affected is necessarily incapable of being heard in his or her own right as to whether the MDPEA actually applies at all. [ 15 ] For the purposes of the current application, therefore, I am prepared to accept that it is arguable that a person facing a guardianship application on grounds of inability to manage one’s own affairs resulting from mental disability or mental infirmity may, depending on the circumstances, have a legitimate interest in receiving timely and reasonable notice of the application and in having an opportunity to be heard on the threshold questions of whether mental disability or infirmity within the meaning of the MDPEA exists and whether as a result thereof they are incapable of managing their own financial affairs. [ 16 ] However, as I have noted, the current practice and the structure of the MDPEA do not contemplate such a procedure and, even if the right to notice and to be heard could be said to be implied to exist in appropriate cases, the MDPEA or the rules of court do not provide any mechanism for determining how those rights, could be accommodated and put into effect in appropriate cases.

There has been no Charter challenge to the constitutionality of the rules of court or the MPDEA made in this case. [ 17 ] Counsel for the Health Authority argues, however, that the applicant’s rights can be protected here, without the necessity of an appeal, by the application of s. 19 of the MPDEA. She can, at any time, apply to have the guardian discharged.

It may be, however, that this provision does not contemplate a re-visitation of the legality or appropriateness of the original guardianship order but simply allows for termination as a result of lack of continuing necessity based on subsequent developments. (I make no definitive ruling on these points).

If that is the case, however, the applicant may not be able to seek any remedy for what has previously happened to her estate, since it would be assumed that actions to date were legitimate. [ 18 ] More pertinent to the present case is rule 29.13 of the Rules of the Supreme Court, 1986 which provides that “[t]he Court may set aside or vary an order made ex parte on such terms as it thinks just.” [ 19 ] This provision allows, in respect of any ex parte order, an affected party who is not heard on the original application to have the matter heard again on an inter partes hearing.

A common example is the case of an interim injunction granted ex parte . The person subject to the injunction may have the matter reheard in a contested hearing with the burden still being on the original applicant to establish the justification for the granting of the injunction.

There is no specific time limit imposed for seeking a subsequent inter partes hearing but, obviously, the longer the affected party waits, the greater will be the equities that might affect the discretion of the court in the remedy it may be able to fashion after hearing evidence and argument from both sides. [ 20 ] Counsel for the applicant and the Hospital Authority both agreed, when this rule was brought to their attention, that it could have theoretical application in the present case.

Indeed, it seems logical that before any appeal could be heard from the ex parte order in this case on the grounds that have been advanced (that if heard, the court could have been convinced that any disability she may have had did not sufficiently affect her ability to manage her own affairs in a manner that would have required the appointment of a guardian) the Court would have to have a proper record of evidence from both sides in order to address those issues.

If the appeal proceeded on the present record, the Court would not have any idea as to the challenges, if any, that might have been made to the sufficiency of the physician’s evidence that grounded the original application.

The Court would have little choice but to dismiss the appeal, insofar as a setting aside of the guardianship order is concerned, since the evidence submitted ex parte , as attenuated as it was, was uncontradicted and complied with the established practice and procedure. [ 21 ] In the circumstances of this case, and in the absence of a Charter challenge to the procedural structure of the governing legislation or of the rules of court, therefore, the appeal, even if brought within time, would be at least premature and would not likely be entertained by the Court until the applicant took advantage of an inter partes hearing under rule 29.13.

If she is dissatisfied with the result of that hearing then she would be able to appeal on a proper and contested record. I do not therefore consider that the appeal as presently proposed has any discernible merit.

[ 22 ] (In saying this, I do not mean to say that this Court would never entertain an appeal from an ex parte order. There may be circumstances where a discrete legal issue involved in the jurisdiction relating to, or the legality of, the granting of an ex parte order could effectively be dealt with on appeal. However, that is not this case). [ 23 ] There are also practical considerations falling within the fourth factor justifying denying leave here.

At the very least, if the appeal were to proceed, to do justice to the real issues at stake, issues of reception of additional evidence on appeal would have to be entertained to deal with the significance of the applicant’s mental disability, if any, and its effect on her ability to manage her own affairs. That, effectively, would involve a full new hearing at the appellate stage. That is something that could better be undertaken through the application of rule 29.13. It is only following an inter partes hearing that the issues would be properly defined and suitable for determination on appeal.

As well, assuming (without deciding) an ex parte hearing was, according to existing practice, appropriate in the first instance, a subsequent inter partes hearing could potentially cure the alleged procedural unfairness under the current practice. [ 24 ] Furthermore, even if the applicant were to be successful in somehow convincing the court that, notwithstanding the procedural practice of conducting ex parte hearings in these circumstances, the applicant was denied a fair hearing and that the original order should be set aside as if it had never been granted, there is nothing on the record to indicate what impact such an order would, after all this lapse of time, have on decisions that have been made, and steps taken, by the Public Trustee in good faith in reliance on the legality of the original order appointing him guardian.

The Public Trustee is not a party to this appeal. There may well be prejudice to the position of the Public Trustee if the matter were to be proceeded with in its present guise.

Again, it would be better if a proper inter partes hearing were first held under rule 29.13 (to which the Public Trustee, as the holder of the office that is under attack, should be made a party) where all issues relating to the appropriateness of guardianship of the applicant, both at the time of the original application, and subsequently, as well as what the consequences of a possible setting aide or termination of the guardianship might be, could be properly dealt with. [ 25 ] In light of the forgoing analysis, the better exercise of discretion under rule 57.05 is to deny the application for extension of time.

In doing so I would not want it to be thought that the significance of the human rights considerations that underlie the issues raised in this matter is being minimized. Those issues still remain.

They should, however, be dealt with in a manner that enables them to be fully and properly addressed. [ 26 ] Finally, I would also observe that depending on the medical and personal circumstances of the person who may be made subject to a guardianship order, there may be situations that would justify giving notice of the guardianship application in advance of the hearing so as to allow the person affected to seek advice and to challenge the basis upon which the order is being sought.

The Rules Committee might wish to consider whether the rules of court should be amended to accommodate such a procedure and, if so, in what circumstances. J.D. Green C.J.N.L.