2021 NUCJ 25, 2021 NUCJ 25

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Public Guardian for Nunavut and Public Trustee for Nunavut v. S.J, 2021 NUCJ 25 Date: 20210528 Docket: 03-20-305 GRD Registry: Iqaluit Applicant/ Public Guardian for Nunavut and Motion Respondent: Public Trustee for Nunavut -and- Respondent/ S.J. Motion Applicant: ________________________________________________________________________ Before: The Honourable Mr . Justice Paul Bychok Counsel (Applicant/Motion Respondent): M. Rasmussen Counsel (Respondent/Motion Applicant): B. Kotierk Location Heard: Iqaluit, Nunavut Date Heard: April 29, 2021 Matters: Powers of a guardian pursuant to sections 11(2) (

a) and 12 of the Guardianship and Trusteeship Act, SNWT 1994, c 29 . REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication) Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I. INTRODUCTION [ 1 ] When I heard this guardianship review application on April 29, 2021 the applicant, S.J., was homeless. A Kinngait resident, he was required by court-ordered bail conditions to live at the Uquutaq Men’s Shelter (the Shelter) in Iqaluit pending resolution of his outstanding criminal charges.

He has applied to ask the Court to order his guardian, the Public Guardian of Nunavut (Public Guardian), to provide him with a place to live in Iqaluit. S.J. has since been granted bail to live with his grandfather in Kinngait. [1] This guardianship review application turns on the correct

interpretation of the Guardianship and Trusteeship Act (the Act). [2] II. BACKGROUND [ 2 ] I first summarise the key events which brought S.J. before me. [ 3 ] On November 12, 2020 the Court appointed the Public Guardian to be S.J.’s guardian. On that date, S.J. was living at the Shelter according to the conditions of his bail order. Among many other things, the guardianship order stated that: …the Guardian may 1. decide where [S.J.] is to live, temporarily or permanently, in accordance with s. 11(2) (

a) of the Act; … [ 4 ] On March 5, 2021, S.J. left Iqaluit to travel to Kinngait to deal with his outstanding criminal charges. He told staff at the Shelter prior to leaving that he would not be coming back. Relying on his statement, Shelter staff gave his bed to another homeless man. [ 5 ] S.J. returned to Iqaluit on March 13, 2021 after court in Kinngait. Upon his return, he discovered that he had in the meantime lost his bed at the Shelter.

S.J.’s bail conditions had not changed, so he now was in breach of his bail order and, importantly, liable to be arrested at any time and to having his bail revoked pending his trial. I note that the application contains affidavits sworn by three Legal Services Board (LSB) criminal defence lawyers who were familiar with S.J.’s circumstances.

[ 6 ] At first, S.J. sought shelter at the Iqaluit Damp Shelter; however at some point, LSB put him up in a local hotel at a cost of $8,423.63. [3] The application seeks to have the Public Guardian reimburse LSB in that amount. [ 7 ] The Public Guardian learned on March 15, 2021 that S.J. had lost his bed at the Shelter. The evidence shows that the Public Guardian made extensive efforts thereafter to find shelter for S.J. in Iqaluit, all unsuccessful. [4] [ 8 ] On March 23, 2021 LSB counsel filed S.J.’s present application.

The application was not filed according to the Rules of Court, so I dismissed it summarily without prejudice. [5] Counsel filed an Amended Notice of Motion on April 6, 2021 and the application proceeded. [ 9 ] Since I heard legal submissions from counsel on April 29, 2021 the Public Guardian in an extraordinary move dismissed S.J.’s LSB defence lawyer (a power granted to it by the guardianship order), and hired another lawyer to represent him in criminal court. The new lawyer applied promptly to have S.J.’s bail conditions varied.

On May 26, 2021 the Court varied S.J.’s bail conditions—with the Crown’s consent—permitting him to live with his grandfather in Kinngait under strict conditions pending his trial. [6] [ 10 ] Although S.J.’s living situation has been addressed, this guardianship review raises a number of important issues of general application which I have been asked to decide. Therefore, these are my reasons for decision. III. ISSUES [ 11 ] The issues in this case may be framed in a series of questions. 1. Does section 11(2) (

a) of the Act create a positive duty on a guardian to provide shelter to its ward? 2. Did the Public Guardian fail to exercise its powers by failing to provide shelter for S.J.? 3. Does a guardian fulfill its section 11 (2) (

a) responsibility by permitting its ward to reside in a homeless shelter? 4. Is the Public Guardian liable to reimburse the LSB for the costs it incurred during S.J.’s hotel stay? [ 12 ] The applicant also seeks several orders requiring the Public Guardian to report back to the Court on an ongoing basis concerning S.J.’s status. IV. STATUTORY

INTERPRETATION [ 13 ] As I noted earlier, this application turns on the correct

interpretation of the Act. Counsel agree that I must apply the following rule of statutory

interpretation stated by the Supreme Court of Canada: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [7] V. THE ACT [ 14 ] The relevant parts of the Act read as follows:

Appointment of guardian 7

(1) The Court may … make a guardianship order where it is satisfied that … (

b) the person in respect of whom an application is made is (

i) an adult, (ii) is in need of a guardian because the person (

A) is not able, by himself or herself or with assistance, to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or (

B) is not able, by himself or herself or with assistance, to appreciate the reasonably foreseeable consequences of a decision referred to in clause (

A) or lack of such a decision , and (iii) will substantially benefit from the guardianship order. (emphasis added) Alternative course of action

(1.1) The Court shall not make a guardianship order under this

section if it is satisfied that an alternative course of action is available that (

a) is less restrictive of the decision-making rights of the person in respect of whom the application is made; (emphasis added) … 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. (emphasis added) 11(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; … Duties of guardian 12 …

(2) A guardian shall exercise his or her powers and perform his or her duties diligently and in good faith. …

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. IV. ANALYSIS [ 15 ] I shall discuss each question in turn. A. Does section 11(2) (

a) of the Act create a positive duty on a guardian to provide shelter to its ward? [ 16 ] Counsel for the applicant bases her application on four grounds.

First, that if a guardian were simply to act as a decision-maker, “then no person represented by the Public Guardian would ever receive services.” [8] [ 17 ] Second, that the record of the legislative debate concerning the Act in 1994 “… illustrated the legislature’s expectation that a guardian would perform their duty by positively seeking out solutions to the circumstances of the represented individual that need remedying”. [9] [ 18 ] Third, a plain language reading of “substantial benefit” in s. 7 (1) (b) (iii) means that a guardian must act so as to “facilitate and make decisions that will substantially benefit the represented person relating to where they live”. [10] And that that substantial benefit must be “material and tangible”. [11] I infer counsel’s submission to mean that in her view, the provision of housing to S.J. by the Public Guardian would be the type of material and tangible benefit mandated by the section. [ 19 ] Fourth, the application is supported, she says, by an internal document disclosed to the applicant by the Public Guardian.

That internal document says, among other things: As a Public guardian [sic] representative, you have two primary roles. The first is obviously to assist the individuals who we serve to make decisions regarding their care and personal matters.

The other role is to advocate for the client to access the service and support they require … If there are services or supports you feel would benefit the adults on your case load, we have been given the authority to direct the funding department (Family Services, Mental Health or Health) to provide needed services. [12] (emphasis in original) [ 20 ] In my view, these arguments must fail for the reasons which follow. [ 21 ] The applicant’s first argument has no legal traction.

No evidence on this point was provided, but I take judicial notice that the Public Guardian has been, and continues to be, instrumental in securing a wide range of services—both inside Nunavut and elsewhere— for Nunavummiut in need of a guardian. [ 22 ] The applicant’s second argument considered carefully, in fact, undermines the logic inherent in the applicant’s submissions. The record clearly demonstrates the Public Guardian has positively sought out realistic solutions to address S.J.’s circumstances.

Further, the Hansard extract relied upon by the applicant dealt solely with the issue of whether there should be a

preamble to the Bill on an unrelated issue. The Hansard extract does not provide any assistance in interpreting the sections of the Act I am considering. [ 23 ] Read in its entirety in its ordinary and plain sense, the Act’s object is clear: the Legislature intended for suitable court-appointed persons to help people like S.J. make appropriate decisions concerning their own personal care as they cannot do so alone. This

interpretation gives meaning to the clear and unambiguous words used by the Legislature in sections 7 (1) (b), 7 (1.1) and 11 (1) as

highlighted above. The entire substance of these provisions address assisted decision making, and nothing else. Section 11 (2) (a), upon which the applicant relies, merely sets out the possible powers which a court may include in a guardianship order. Section 11 (2) (

a) does not by itself place any positive obligations on the Public Guardian to provide housing. [ 24 ] My conclusion is supported by the only two specific and positive duties which the Legislature has placed on guardians generally in section 12 (2): “a guardian shall exercise his or her powers and perform his or her duties diligently and in good faith”. There is nothing in the Act which expressly—or by necessary implication—says that a guardian has a positive duty to provide their charge with housing, or any other specific benefit for that matter.

Furthermore, to say that a substantial benefit must be a tangible and material one is, in the context of the Act, to create a distinction without a difference. [ 25 ] The internal Public Guardian document referred to above in paragraph 19, which claims a power of direction over other government departments, seems a first blush to support the applicant’s position.

The evidence shows that the document was prepared by the former Public Guardian in 2017 as part of a draft protocol which was never adopted. [13] Importantly, I accept the following evidence from the Public Guardian that Contracts with facilities in which represented persons are placed are entered into on behalf of the Government of Nunavut by the Department of Family Services or the Department of Health.

The Office of the Public Guardian does not enter into those agreements and has no budget or funds appropriated by the Nunavut Legislative Assembly for that purpose … The Office of the Public Guardian has no authority to direct other government departments to do anything. [14] [ 26 ] I find on the evidence that the Legislature has not allocated any public funds to the Public Guardian for the provision of housing, nor does the Public Guardian have authority to direct any government department to do so. [ 27 ] The allocation of public funds by the Government of Nunavut is governed by

Part III of the Financial Administration Act , [15] the key parts of which read: Authority for expenditure 27 No person shall incur an expenditure without the authority of an enactment. … Expenditure control 30

(1) No person shall incur an expenditure unless it is pursuant to an appropriation and in accordance with the activity set out in the Estimates on which the appropriation is based. [ 28 ] This is a critical point. As recently as 2006, Johnson J reaffirmed the longstanding principle that this Court has no authority or jurisdiction to order a government department to expend public funds. [16] [ 29 ] The answer to this question then is no. I must dismiss the application for an order directing the Public Guardian to expend unallocated public monies to provide housing to S.J. . B.

Did the Guardian fail to exercise its powers by failing to provide shelter for S.J.? [ 30 ] As there is no statutory duty requiring the Public Guardian to provide housing, the answer to this question is also no.

C. Does a guardian fulfill its section 11(2) (

a) responsibility by permitting its ward to reside in a homeless shelter? [ 31 ] The applicant submitted: Living in a shelter does not mean that one is not homeless, organizational shelters provide temporary, emergency shelter to the unhoused and do not constitute a residence and exposes S.J. to a number of risk factors relating to his mental and psychical [sic] health and wellbeing. Shelter living is not an adequate discharge of the Public Guardian’s s. 11 (2) (

a) duties to S.J. as he remains unhoused whether in a temporary shelter or not. [17] [ 32 ] The applicant did not call any evidence to support its submission. 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. [ 33 ] 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. D.

Is the Guardian liable to reimburse the LSB for the costs of S.J.’s hotel stay? [ 34 ] The applicant says I should apply Jordan’s Principle [18] and order the Public Guardian to reimburse LSB for the costs it incurred during S.J.’s stay at an Iqaluit hotel. The ambit of Jordan’s Principle was correctly described by counsel for the Public Guardian in the following terms: Jordan’s Principle is a “principle” [sic] and not a law. It is a resolution adopted by the House of Commons and is not binding as law even on the federal government.

However, it has been implemented by the federal government as a matter of policy to ensure that First Nation’s children living on a reserve will receive the health and social services care they need while disputes between the federal and provincial government are resolved. [19] [ 35 ] The spirit which animates Jordan’s Principle arose in an entirely different context from the subject of this application: which is the

interpretation of a statute of general application to all Nunavummiut. Consequently, the answer to this question is no. VI. CONCLUSION [ 36 ] For all of the above reasons, I dismiss the application. Dated at the City of Iqaluit this 28 th day of May, 2021

___________________ Justice P. Bychok Nunavut Court of Justice