Mental Health and Addiction Services v S.B., 2021 SKCA 18

Court of Appeal for Saskatchewan Docket: CACV3519 Citation: Mental Health and Addiction Services v S.B. , 2021 SKCA 18 Date: 2021-02-01 Between: Colleen Quinlan, Executive Director, Mental Health and Addiction Services, Integrated Urban Health, Saskatchewan Health Authority Appellant (Applicant) And S.B. Respondent (Respondent) And S.B. (Next of Kin) Respondent (Respondent) Before: Ryan-Froslie, Schwann and Leurer JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice Ryan-Froslie In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Leurer On appeal from: QBG 2554 of 2019, Regina Appeal heard: November 9, 2020 Counsel: Brian Lunde for the Appellant Christina Skibinsky for the Respondent S.B. S.B. (Next of Kin) appearing on her own behalf Ryan-Froslie J.A. I. INTRODUCTION [ 1 ] This appeal addresses the jurisdiction of a Queen’s Bench judge to order funding for family visits to a person subject to a long-term detention order granted pursuant to s. 24.1 of The Mental Health Services Act , SS 1984-85-86, c M-13.1 ( MHSA ).

It also addresses matters of procedural fairness raised by the Saskatchewan Health Authority (SHA) and the role, if any, to be played by this Court with respect to such orders. [ 2 ] In my view, for the reasons set out herein, the appeal should be allowed. The Queen’s Bench judge lacked jurisdiction to order the SHA to fund family visits. Further, he failed to provide procedural fairness to the SHA before making the funding order. II. BACKGROUND [ 3 ] The Respondent, S.B., suffers from a schizo-affective disorder as well as alcohol abuse and a gambling addiction.

After many years of unsuccessful treatment, both in the community and in the mental health unit of the acute care hospital located near her family’s home, the SHA sought an order pursuant to s. 24.1 of the MHSA detaining S.B. in a mental health centre for a period not exceeding one year. A hearing was held in the Court of Queen’s Bench, at which the psychiatrist who had been treating S.B. and a psychiatric nurse involved in her care testified on behalf of the SHA. S.B. and S.B.’s mother also testified.

At the close of the SHA’s case, legal counsel for S.B. acknowledged the criteria for S.B.’s detention as set out in s. 24.1 had been met. The only issue was where S.B. would be detained. S.B. and her mother wanted S.B. placed in the mental health unit of the acute care hospital located near the family’s residence. That would enable S.B.’s family to visit her and provide her with emotional support.

While the SHA recognized the importance of family involvement to the success of S.B.’s treatment, it sought an order that S.B. be placed in Saskatchewan’s only residential mental health centre which is located in a different area of the province. According to the SHA’s evidence, that facility could best meet S.B.’s treatment needs even though her placement there would likely curtail contact with her family. [ 4 ] The Hearing judge accepted the SHA’s position and ordered S.B. be detained for a period of up to one year in the residential mental health centre.

He also ordered the SHA to work with S.B.’s mother “to help arrange, at least monthly visits for family including paying for the costs of those trips”. [ 5 ] The SHA appeals against that portion of the judge’s order requiring it to fund the family visits. It contends the Hearing judge had no jurisdiction to make such an order. While not identified as a stand-alone ground of appeal, the SHA also contends that it was given no opportunity to address the funding issue. It submits that neither S.B. nor her mother requested such an order.

Rather, the SHA says the Hearing judge ordered the funding on his own motion without notice to the parties. In effect, SHA’s argument raises a matter of procedural fairness. III. APPLICATION TO ADDUCE NEW EVIDENCE [ 6 ] At the hearing of the appeal, S.B.’s mother, who is a party to the proceeding by virtue of being S.B.’s “nearest relative”,

applied to adduce new evidence. [7] The evidence sought to be adduced was not in existence at the time of the hearing.

It consists of information about thetherapeutic treatment (or lack thereof) that S.B. received at the residential mental health centre where she was ordered detained; the factthat S.B.’s detention in that facility is no longer recommended; and that the SHA failed to comply with the funding provisions of theimpugned judgment. [8] The law applicable to applications to admit evidence in this Court was set out in Maitland v Drozda, (SKCA), [1983] 22 Sask R 1 (CA) at para 23 [Maitland] and Turbo Resources Ltd. v Gibson, (SK CA), [1987] 60 Sask R221 at paras 10–19 [Turbo Resources].

In those cases, this Court set out the circumstances under which applications to adduce evidencewould be allowed. In doing so, it distinguished between two types of applications: (

i) applications to admit evidence that was in existenceat the time of the hearing or trial and; (ii) evidence of events that occurred after a hearing or a trial. In both situations it is up to the Courtto determine whether the evidence will be admitted. The test for admission, however, is different. Evidence in existence at the time of ahearing is only admitted on special grounds. New evidence on the other hand, need not meet the same test. It must, however, be admissibleand relevant to an issue under appeal.

Further it must not violate the principle of public policy that favors finality to litigation. [9] Justice Wakeling, in writing for the Court in Turbo Resources summarized the law with respect to such applications follows: [11] This Rule [41] empowers the Court, in its discretion, to receive further evidence upon questions of fact. In all cases leave of theCourt is required before the evidence may be given. In some instances, special leave, meaning leave which will be granted on specialgrounds only, is required.

In others, leave is required but upon the usual grounds only, meaning that the applicant need not meet the morestringent tests governing the grant of special leave.

Generally speaking, evidence of matters occurring after the decision under appeal ismade will be received more readily than will evidence of the matters occurring before. [12] As to appeals from orders made in Chambers, further evidence, whether of matters occurring before or after the making of theorder, may be adduced with the usual leave. [13] As for appeals from judgments after trial or hearing upon the merits, further evidence as to matters occurring after the judgment isrendered may be given upon the usual leave; but as for matters occurring before, special leave is required, upon special grounds. [14] Maitland v.

Drozda, (SK CA), [1983] 3 W.W.R. 193, 22 Sask. R. 1 (Sask. C.A.), canvassed the nature of thespecial grounds contemplated by the Rule and affords a good example of the differing treatment accorded evidence of matters occurringbefore and after the decision under appeal is made. In that, a Fatal Accidents Act, R.S.S. 1978, c. F-11 case, the appellants sought tointroduce evidence of (

i) the driving habits of the deceased as observed by a witness whose existence and identity were unknown at thetime of trial, and (ii) the re-marriage of the plaintiff widow after trial. [15] As for the former Brownridge J.A., speaking for the Court, said this [p. 6 Sask. R.]: Fresh evidence which is admissible only on 'special grounds', and by 'special leave', must meet certain tests, including these:

(1) It will not be admitted, if by due diligence, it could have been adduced at trial. This test is applied more strictly in civil than in criminalcases;

(2) The evidence must be relevant, in the sense that it bears upon a decisive, or potentially decisive, issue in the action;

(3) The evidence must be credible in the sense that it is reasonably capable of belief. See: Dormuth et al. v. Untereiner et al., [1964] S.C.R. 123; McMartin v. The Queen, (SCC), [1964] S.C.R. 484; R. v.Palmer, (SCC), [1980] 1 S.C.R. 759, 30 N.R. 181.

Fourthly it must be 'practically conclusive' of a decisive, or potentially decisive issue, (per Ritchie, J., in Dormuth), or, as said morerecently by the Supreme Court of Canada (in Palmer), it must be such that if believed could reasonably, when taken with the otherevidence adduced at trial, be expected to have affected the result. [16] As for the latter, Brownridge J.A. noted [p. 7 Sask.

R.] that: In the language of Rule 41, the new evidence of remarriage relates 'to matters which have occurred after the date of the decision fromwhich the appeal is brought' and may be admitted in the absence of special grounds, and without special leave. This is not to say, however,that the court will automatically permit additional evidence to be adduced simply because the matter has occurred after the trial decisionbecause to do so would violate the principles of public policy that there must be finality to litigation and that damages are assessed onceand for all.

These considerations may induce a court to refuse to allow the new evidence to be presented even though the Rule states thatsuch evidence may be given without special leave. The Rules vary from jurisdiction to jurisdiction. See, for example, the

section of theSupreme Court Act, discussed in Dormuth v. Untereiner, supra, and Mulholland v. Mitchell, [1971] A.C. 666 at 675 where Lord Hodsonquoted the English Rule, which is the same as ours, and then said: The Court of Appeal is thus given an unfettered discretion to receive further evidence in a case such as this where there has been, and thisis not denied, a dramatic change of circumstances after the date of the trial. In the circumstances I would admit the evidence of Mrs.

Maitland's remarriage. [17] The distinction between special and other forms of leave was recognized by the Supreme Court of Canada in Dorzek v. McCollFrontenac Oil Co., (SCC), [1933] S.C.R. 197, [1933] 2 D.L.R. 145, from which the following comment is applicable (p.200 [S.C.R.]): Moreover,

section 41 provides for 'a special leave to appeal' which implies the existence of special reasons for granting leave.

[ 10 ] The Court in Turbo Resources was dealing with what was then Rule 41 of The Court of Appeal Rules . That rule has changed. The current rule pertaining to applications to adduce fresh evidence is Rule 59. The relevant portions of the rule, for the purposes of this appeal, are as follows: Fresh evidence 59(1) A party desiring to adduce fresh evidence on appeal shall, in accordance with existing law, apply to the court for leave to do so by notice of motion returnable on the date fixed for hearing the appeal. [ 11 ] Rule 41 was more comprehensive than Rule 59.

It specifically addressed the different situations giving rise to applications to adduce evidence in this Court. [ 12 ] It is not necessary to consider what, if any, effect Rule 59 has on the application of the law as set out in Turbo Resources and Maitland . This is so because, for evidence to be admissible, it must be relevant to the issues confronting the Court. In this appeal, the evidence sought to be admitted is not relevant to the issues to be determined.

More particularly, the evidence does not bear upon the question of whether the Hearing judge had jurisdiction to order the SHA to fund family visits, or whether the Hearing judge afforded the SHA procedural fairness when making that order. The issues on this appeal are questions of law, that do not depend on the type of treatment S.B. has received, her continued need for detention, or whether the SHA has complied with the impugned judgment. Accordingly, the application to adduce new evidence is dismissed. [ 13 ] That is not to say I am unsympathetic to the mother’s frustration with the mental heath system.

People with mental health disorders are among the most vulnerable in our society. The families of such individuals are often faced with impossible, heart wrenching situations and choices. They must confront not only the reality of limited and uncertain treatment options and resources but the stark fact that funding to implement and support treatment options is finite. Further, mental health professionals rarely have clear answers as to what, if any, treatment option(

s) will work. All this can be devastating for the person suffering from a mental disorder and for their family. I have no doubt that is the situation S.B. and her mother have found themselves in. [ 14 ] For the reasons already stated, the application to adduce new evidence is dismissed. IV. PRELIMINARY ISSUE [ 15 ] S.B. raised as a preliminary issue, the jurisdiction of this Court to hear the SHA’s appeal. In the alternative, she argued that if this Court does have jurisdiction, leave to appeal is required pursuant to s. 8 of The Court of Appeal Act, 2000 , SS 2000, c C-42.1 .

As the SHA did not obtain leave, S.B. submits its appeal must be dismissed. I will deal with each of these submissions in turn. A. Jurisdiction to Hear the Appeal [ 16 ] It is S.B.’s position that the general right to appeal decisions of the Court of Queen’s Bench to this Court contained in s. 7 of The Court of Appeal Act, 2000 has been ousted by the MHSA . She contends that neither the MHSA nor its regulations refer to the Court of Appeal, or provide for appeals from decisions made under that Act to this Court.

S.B. argues that the MHSA ’s silence indicates the Legislature intended to take away any right of appeal to this Court. [ 17 ] In addition to the MHSA ’s silence, S.B. cites three additional factors that she contends supports her position. First, she submits that the MHSA sets out its own “appeal process” with respect to long-term detention orders made under s. 24.1 .

That “appeal process” involves applications for review to the Court of Queen’s Bench. [ 18 ] Second, in the alternative, S.B. contends that a person detained pursuant to s. 24.1 of the MHSA has no right to appeal their detention order and, as such, neither would the SHA have such a right. S.B.’s position is based on her assertion that a person subject to a s. 24.1 order is deemed to have “a general lack of capacity to instruct counsel”.

S.B argues that, while an official representative is provided to assist individuals facing applications for long-term detention orders, the duties of such representative, as set out in s. 13 of The Mental Health Services Regulations , RRS c M-13.1 Reg 1 ( Regulations ), do not include assisting with appeals to this Court.

S.B. submits that if the Legislature intended persons subject to such orders to have a right of appeal to the Court of Appeal then such duties would have been included in s. 13 . [ 19 ] Third, S.B. posits that it is the “established practice” for those affected by long-term detention orders to raise “reviewable issues in the Court of Queen’s Bench”. She submits that Queen’s Bench judges who hear a review are in effect sitting on appeal of the decision of their brother or sister judge who granted the long-term detention order.

In support of her position she cites Saskatchewan (Regional Director Mental Health in Patient Services, Regina Qu’Appelle Health Region) v R. (M.M.) , 2016 SKQB 108 at para 45 [ R. (M.M.) ]. [ 20 ] In my view, S.B.’s position with respect to the jurisdiction of this Court is without merit. [ 21 ]

Section 7 of The Court of Appeal Act, 2000 provides: 7(1) In this

section and

section 9, “enactment” means: (

a) an Act; (

b) an Act of the Parliament of Canada; or (

c) a regulation made pursuant to

an Act or

an Act of the Parliament of Canada; but does not include this Act.

(2) Subject to subsection (3) and

section 8 , an appeal lies to the court from a decision:

(

a) of the Court of Queen’s Bench or a judge of that court; and (

b) of any other court or tribunal where a right of appeal to the court is conferred by an enactment.

(3) If an enactment provides that there is no appeal from a decision mentioned in subsection (2) or confers only a limited right ofappeal, that enactment prevails. [22] Section 7(2)(

a) gives parties involved in litigation a general right of appeal to this Court from decisions made in the Court ofQueen’s Bench. That general right may be abrogated or curtailed by “an enactment” being a federal or provincial Act or regulation. [23] This Court had an opportunity to consider the operation of s. 7 in Saskatchewan College of Psychologists v Sydiaha, 2014SKCA 116, 378 DLR (4th) 207 [Sydiaha]. That case dealt with the jurisdiction of this Court to hear an appeal from a decision of the Courtof Queen’s Bench where the statute pursuant to which the decision was made was silent as to a right of appeal.

In determining that“silence” in an enactment does not abrogate the general right to appeal conferred by s. 7, Jackson J.A. writing for the Court stated: [23] In order to properly interpret s. 7, it is necessary to read ss. 7(2) and 7(3) harmoniously together so as to give each provisionmeaning. Having regard for the nature of general appellate legislation like The Court of Appeal Act, 2000, the proper meaning of s. 7(2)(a)is that it creates the general jurisdiction of the Court: an appeal lies to the Court from a decision of the Court of Queen's Bench.

Section7(3) is nothing more than a further expression of what would be the law whether the subsection were there or not: the general right ofappeal to the Court is subject to an expression of legislative will to the contrary in any other enactment, but it requires more than silencein the other enactment to take away the general right. (Emphasis added) See also Home Depot of Canada Inc. v Hello Baby Equipment Inc., 2020 SKCA 7 at para 16–21, 444 DLR (4th) 145. [24] Sydiaha is a complete answer to S.B.’s assertion that “silence” in the MHSA indicates the Legislature’s intention to take awaythe general right to appeal granted by s. 7 of The Court of Appeal Act, 2000.

As indicated, that right of appeal can only be abrogated orlimited by explicit language. [25] To address the three factors cited by S.B. as supporting her position that this Court has no jurisdiction requires theinterpretation of various provisions of the MHSA. [26] In Rizzo and Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27, the Supreme Court of Canada set out theanalytical framework to be used by judges engaged in statutory

interpretation. It endorsed the principle expressed by Elmer A. Driedger,Construction of Statutes, 2d ed (Toronto: Butterworths, 1983) at 87 that the words of

an Act must be read in their entire context and intheir grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature.Section 2-10 of The Legislation Act, SS 2019, c L-10.2 codifies this approach with respect to the

interpretation of Saskatchewan statutesand, in addition, provides in subsection (2) that “[e]very act and regulation is to be construed as being remedial and is to be given the fair,large and liberal

interpretation that best ensures the attainment of its objects”. [27] With the above framework in mind, I turn to consider the purpose and scheme of the MHSA, particularly with respect to long-term detention orders. [28] The MHSA does not contain a specific

section setting out its purpose. Its objective, however, is clear from its content, namelythe provision of mental health services in the province. [29] Individuals who suffer from mental disorders are not always able to recognize their existence or the impact those disordershave on their lives or the lives of those around them. Sometimes, for their own safety or the safety of others, such individuals must bedetained against their will in a mental health centre so they can receive the treatment, care and supervision necessary to bring theirdisorder(

s) under control. [30]

Part V of the MHSA provides, among other things, for the involuntary treatment of persons suffering from mental disorders.The scheme set out in

Part V contemplates a number of measures to compel persons suffering from mental disorders to obtain thetreatment they need. Such measures include psychiatric reviews, community orders allowing for treatment in the community undersupervision, and involuntary admission to mental health centres. By far the most intrusive of these measures is long-term detention (up toone year) in a mental health centre (s. 24.1). [31] The MHSA also provides for appeals and the review of orders granted under

Part V.

Part VI of the Act establishes a reviewpanel to deal with appeals of involuntary admissions on medical certificates pursuant to s. 24; community treatment orders granted under s.24.3; and transfers between mental health centres pursuant to s. 28. In accordance with s. 36 of

Part VI a patient or designated person ontheir behalf, may appeal a review panel’s decision to the Court of Queen’s Bench. Subsection 36(7) specifically provides that no furtherappeal from that decision to this Court is allowed. [32] The review panel’s jurisdiction is specified in the Act. It does not include appeals from long-term detention orders granted by ajudge of the Court of Queen’s Bench pursuant to s. 24.1. As already indicated, that

section and the MHSA itself are silent on the right toappeal such orders.

Section 24.1(4) however, provides that long-term detention orders are subject to “review” by the Court of Queen’sBench. Pursuant to s. 24.1(9), the practice and procedure of the Court of Queen’s Bench on an application in Chambers applies toapplications made under s. 24.1, with any necessary modification. In other words, applications for long-term detention orders andapplications for the review of such orders follow the same procedure. In practice, evidence, both viva voce (oral) and through the filing ofdocuments, is allowed. [33] Pursuant to the MHSA, an official representative is to be notified of a decision made under

Part V: 16(2) Where a person is apprehended or detained pursuant to

section 18, 19, 21, 22, 23, 24, 24.1 or 24.3 or is transferred pursuant to

section 28, an official representative for the region shall be provided with a copy of the certificate, warrant or order pursuant to which the person is or was apprehended, detained or transferred, as the case may be, as soon as is reasonably practicable. [ 34 ]

Section 13 of the Regulations sets out the duties of the official representative which includes that, on receipt of an application for a long-term detention order pursuant to s. 24.1 , the official representative shall: 13(1)(d)…visit the person who is the subject of the application as soon is practicable, provide the person with information concerning his or her rights and obligations with respect to the application, and as far as is reasonably practicable, provide any assistance that is requested including the following: (

i) assisting the person who is trying to obtain legal counsel; (ii) accompanying the person to the court hearing; (iii) representing the person at the court hearing [ 35 ] The duties of the official representative as set out in s.13 of the Regulations do not extend to appeals to this Court. [ 36 ] Keeping in mind the purpose of the MHSA and, its scheme and in particular, how that scheme relates to the granting of long- term detention orders pursuant to s. 24.1 , I note the following: (

a) The jurisdiction of the Court of Appeal to hear appeals from Queen’s Bench decisions pertaining to the granting of long-term detention orders under s. 24.1 is not abrogated or limited by an explicit provision in either the MHSA or its Regulations . It is of significance that the Legislature in s. 36(7) of the MHSA mandated an appeal with respect to a review panel’s decision would end with an appeal to the Court of Queen’s Bench. If the Legislature had intended to take away the right of appeal granted by s. 7 of The Court of Appeal Act, 2000 with respect to long-term detention orders it would have provided a similar provision in s. 24.1 . (

b) Long-term detention orders impact a person’s s. 7 Charter right to liberty. It would be incongruent that persons subject to less intrusive orders would have a right of appeal to the review panel and then to the Court of Queen’s Bench, but those subject to long-term detention orders would have no right of appeal. (

c) In my view, contrary to S.B.’s position, the review contemplated by s. 24.1(4) is not the same as an appeal. The review provision was put in place to enable the variation or termination of a long-term detention order in the event of a change in circumstances. It recognizes that mental disorders are fluid in nature, not static. If the conditions initially justifying the granting of such an order change or no longer exist, then there should be a mechanism to vary or terminate the order. Review applications involve the presentation of new evidence.

They focus not on the correctness of the initial decision, but rather on whether there has been a change in circumstances that justifies a variation or termination of the order. Further, comity would not allow one Queen’s Bench judge to overturn the decision of another. Counsel for S.B. acknowledged in oral argument such a situation would be highly unusual. An appeal on the other hand, involves the review of a decision for error.

It is based on the record that was before the judge who made the order and new evidence is generally not admissible. [ 37 ] In my opinion, R. (M.M.) , which was cited by S.B., does not support her position. [ 38 ] In R. (M.M.) the judge who granted the initial long-term detention order, denied a request by the patient’s mother that she be provided with information pertaining to her son’s treatment, and have input into his future care arrangements. The Chambers judge’s decision was based on M.M.R . ’s privacy rights. [ 39 ] Sometime later, an application to review the long-term detention order was made.

On review, three witnesses testified, and a doctor’s report was admitted. At paragraph 27 of his decision, the reviewing judge indicated that the principal issue before him, namely, whether M.M.R . ’s detention should continue “was not vigorously contested”. He determined at paragraph 28 that “it is clear that M.M.R . requires further inpatient care. Although his condition has certainly become more stable since admission, the necessary level of insight is insufficient for independent living outside the hospital setting”.

The reviewing judge concluded that “M.M.R.’s condition remains a work in progress, and that the criteria in ss. 24.1(1)(

a) through (

e) continue to be met ” (emphasis added). [ 40 ] During the hearing before the reviewing judge, the mother raised a question about the monitoring of her son’s care during the course of the long-term detention order – a task she wished to assume. In rejecting the mother’s request, the reviewing judge stated: [45] Further, while I accept that the court has an oversight role regarding the quality of a detained person's care, this is not something that can easily be delegated to a family member. In this respect, I agree with Dawson J. when she declined Ms.

M.'s request for input into her son's care arrangements at the Saskatchewan Hospital. M.M.R. is an adult. To the extent his privacy can be protected under the circumstances, the court must do so. [ 41 ] In making this statement, the reviewing judge was not assuming an appellate role with respect to the initial decision, nor was he assessing whether the first judge had made the right decision. Rather he was addressing concerns raised by the mother during the review hearing about her role in her son’s care. His task was to review the order to determine if things had changed.

In short, R. (M.M.) does not support the conclusion that it is the practice for judges of the Court of Queen’s Bench to sit on appeal of another Queen’s Bench judge’s long-term detention order. [ 42 ] While counsel for S.B. asserted in her factum that individuals subject to long-term detention orders are deemed, by virtue of being subject to a MHSA order, “as having a general lack of capacity to instruct counsel” that is not in fact the case. There is no provision in the MHSA that deems persons subject to such orders lack mental capacity. On the contrary, ss. 13(1)(d)–(

k) of the Regulations clearly contemplate that such persons may have the capacity to instruct counsel, as those provisions impose on the official representative a duty to assist such individuals to do so. [ 43 ] Further, it is to be remembered that some persons subject to orders under the MHSA live in the community, and are subject to

supervision orders to ensure their compliance with medication. Such individuals could not be “deemed” to lack mental capacity. Further, the basis for making a long-term detention order under s. 24.1 is not a lack of mental capacity, but rather that the person, as a result of his or her mental disorder, “is unable to fully understand and make an informed decision regarding his or her need for treatment or care and supervision” ( s. 24.1 (b)). The incapacity identified is limited to the mental disorder and its treatment. It does not relate generally to mental capacity.

This view is supported by the fact that the MHSA makes no reference to the appointment of a guardian to make personal, financial or property decisions for persons subject to orders under the Act . [ 44 ] All of this leads to S.B.’s assertion that persons subject to long-term detention orders have no right of appeal. As already indicated the right of appeal is granted by s. 7(2) (

a) of The Court of Appeal Act, 2000 and it applies both, to persons subject to such orders, and to the SHA who requests the order. [ 45 ] One final word about the Regulations is in order. Subsection 13(1) (

d) of the Regulations requires the official representative to provide a person, who is subject to a s. 24.1 application, “…with information concerning his or her rights and obligations with respect to the application…”. In my view this would include their right to appeal such decisions to this Court. That the official representative’s duties do not encompass appeals to the Court does not mean a right of appeal does not exist. The official representative was given authority to appear on this appeal.

I also note that pursuant to s. 24.1(2) of the MHSA an application for a long-term detention order is to be served on the patient’s nearest adult relative, their proxy, if any, and their personal guardian, if any. These service requirements would presumably provide notice to those tasked with making decisions for a mentally incompetent individual. Further, if the official representative has concerns with respect to an individual’s general mental competence, the official guardian can be notified. [ 46 ] In conclusion, this Court has jurisdiction pursuant to s. 7 (2) (

a) of The Court of Appeal Act, 2000 to hear the SHA’s appeal. That jurisdiction has not been abrogated or limited by the MHSA or its Regulations . B. Leave to Appeal [ 47 ] S.B. argues that, if this Court has jurisdiction to hear SHA’s appeal, then because the long-term detention order is interlocutory in nature, leave to appeal is required pursuant to s. 8 of The Court of Appeal Act, 2000 . S.B. contends the long-term detention order is interlocutory because on application by any party, it can be reviewed at any time. S.B. submits that because the SHA did not obtain leave, its appeal cannot be heard. [ 48 ]

Section 8 of The Court of Appeal Act, 2000 provides as follows: 8(1) Subject to subsection (2), no appeal lies to the court from an interlocutory decision of the Court of Queen’s Bench unless leave to appeal is granted by a judge or the court.

(2) Leave to appeal an interlocutory decision is not required in the following cases: (

a) cases involving: (

i) the liberty of an individual; (ii) the custody of a minor; (iii) the granting or refusal of an injunction; or (iv) the appointment of a receiver; (

b) other cases, prescribed in the rules of court, that are in the nature of final decisions. (Emphasis added) [ 49 ] The term “interlocutory” stands in contradistinction to the term “final”. With respect to decisions rendered by a court, interlocutory orders generally connote decisions that do not finally dispose of the substantive issue in an action (The Honourable Stuart J. Cameron, Civil Appeals in Saskatchewan: The Court of Appeal Act & Rules Annotated , 1st ed (Regina: Law Society of Saskatchewan Library, 2015).

Further, as Kalmakoff J.A. recently explained in Poffenroth Argi Ltd. v Brown , 2020 SKCA 68 [ Brown ]: [15] At a very general level, an interlocutory decision is one made during the progress of an action or other proceeding that relates to some intermediate matter at issue in the case, not to the ultimate matter in issue (see Stuart J. Cameron, Civil Appeals in Saskatchewan: The Court of Appeal Act & Rules Annotated , 1st ed (Regina: Law Society of Saskatchewan Library, 2015) at 118 [ Cameron ]).

As Cameron explains, the object of the requirement to obtain leave to appeal from interlocutory decisions “lies in avoiding undue cost and delay by allowing prospective appeals from interlocutory decisions of the Court of Queen’s Bench to be selectively culled to the end of achieving that object” (at 34). This stands to reason.

Given the wide range of orders that may be made during the course of a civil action, it would be impractical, costly to litigants and the justice system, and perhaps even unfair to permit an unlimited right of appeal from all decisions made by a Queen’s Bench judge. (Emphasis added) [ 50 ] On the other hand, an order is final when, if allowed to stand, it finally disposes of the rights of the parties: Saskatchewan Medical Association v Anstead , 2016 SKCA 143 at para 56 . [ 51 ] In my view, long-term detention orders made pursuant to s. 24.1 of the MHSA are final orders.

If allowed to stand such orders effectively dispose of the rights of the parties in a final and binding way. Such orders determine whether a person meets the criteria set out in s. 24.1(1) and, whether as a result, they should be detained in a mental health centre for a period up to one year. The fact long-term detention orders may be reviewed does not change their final nature. In any event, an application for review may never be made. Further,

a review deals with different issues, namely whether the order should, as a result of a change in circumstance, be varied or terminated.

Aspointed out by Kalmakoff J.A. in Brown at paragraph 20: …an order need not bring the entire dispute between the parties to an end to constitute a final order; an order can be final if it finallydetermines the particular proceeding before the court, notwithstanding that there may be some other issues left to be determined in someother proceeding or by some other process. [52] Even if the order under appeal was not final in nature, it still would not be caught by s. 8 of The Court of Appeal Act, 2000, asthe order involves the liberty of an individual, and thus falls under the exceptions set out in s. 8(2)(a).

The application of this exception isnot affected by the fact the SHA’s appeal relates only to the portion of the detention order dealing with the funding of family visits. This isso because the funding of those visits was an integral part of the detention order and directly impacts its implementation. [53] The SHA does not require leave to appeal. [54] I turn now to consider the substantive issues raised by the SHA’s appeal: The Hearing judge’s jurisdiction to make the fundingorder and the question of procedural fairness. V. ANALYSIS A. Jurisdiction of the Hearing Judge 1.

Position of the parties [55] The SHA contends that the Hearing judge had no jurisdiction to order it to fund family visits to S.B. It submits that s. 24.1(3)of the MHSA sets out a judge’s authority when granting a long-term detention order. That subsection does not provide the power to orderfunding for family visits.

Further, the SHA argues that while a Queen’s Bench judge has inherent jurisdiction, such jurisdiction does notinclude the authority to designate where or how government monies are to be spent: Ontario v Criminal Lawyers’ Association of Ontario,2013 SCC 43, [2013] 3 SCR 3 [Criminal Lawyers’ Association]. [56] S.B. contends the Hearing judge’s authority to order funding for family visits is a necessary adjunct to his power to grant along-term detention order. She submits that the Hearing judge’s authority stems from his inherent parens partriae jurisdiction. 2.

Analysis [57] The Hearing judge’s power to make a long-term detention order is found in s. 24.1(3) of the MHSA and bears repeating here: Where a judge of the court finds, following a hearing, that the person meets all of the criteria listed in subsection (1), the judge may makean order for the detention of the person for a period of up to one year for the purposes of treatment, or care and supervision [58] The only explicit grant of authority pursuant to s. 24.1(3) is the ability to make or deny an order for detention of the personsubject to the application.

The MHSA does not give a judge the authority to order the SHA to cover the cost of family visits. [59] The Court of Queen’s Bench has inherent jurisdiction: Attorney General of Canada v Law Society of British Columbia, (SCC), [1982] 2 SCR 307 at 326–327. [60] In Criminal Lawyers’ Association, Karakatsanis J. summarized what inherent jurisdiction is: [26] With the advent of the Charter, the superior courts’ inherent jurisdiction must also support their independence in safeguarding thevalues and principles the Charter has entrenched in our constitutional order.

Thus, the inherent jurisdiction of superior courts providespowers that are essential to the administration of justice and the maintenance of the rule of law and the Constitution. It includes thoseresidual powers required to permit the courts to fulfill the judicial function of administering justice according to law in a regular, orderlyand effective manner — subject to any statutory provisions.

I would add, however, that the powers recognized as part of the courts’inherent jurisdiction are limited by the separation of powers that exists among the various players in our constitutional order andby the particular institutional capacities that have evolved from that separation. (Emphasis added) See also: MacMillan Bloedel Ltd v Simpson, (SCC), [1995] 4 SCR 725 at paras 38 and 40; R v Caron, 2011 SCC 5 at para24, [2011] 1 SCR 78 [Caron]. [61] The Queen’s Bench Court’s inherent jurisdiction may be exercised, even in respect of matters that are regulated by statute or byrules of court, so long as its exercise does not contravene any statutory provision (Caron at para 32).

Thus, subject to a specific provisionto the contrary, a superior court may draw on its inherent jurisdiction, as necessary, whenever it is just and equitable to do so. However,there are limits to the exercise of inherent jurisdiction. Resource allocation has long been viewed as falling outside a superior court’sinherent jurisdiction. [62] In Criminal Lawyers Association the Supreme Court of Canada dealt with three cases where judges had appointed amici curiaeto assist accused persons.

The Attorney General took the position amici curiae play a role similar to defence counsel and thus, should becompensated in accordance with the Legal Aid tariff. In each case, the trial judge had fixed rates that exceeded that tariff and had orderedthe Attorney General to pay. The Crown appealed those decisions contending that the judges lacked jurisdiction to fix the rates ofcompensation as they had. The Ontario Court of Appeal dismissed the appeals.

The Supreme Court of Canada in a 5–4 decision allowedthe appeals holding, the doctrine of inherent jurisdiction must be responsive to the separation of powers that exist between the executive,

legislative and judicial branches of government. Justice Karakatsanis summarized the majority position as follows: [15] … The ability of the government to make payments out of public funds must be grounded in law and a court’s inherent or implied jurisdiction is limited by the separate roles established by our constitutional structure.

Absent authority flowing from a constitutional challenge or statutory provision, exercising such power would not respect the institutional roles and capacities of the legislature, the executive (including the Attorney General), and the judiciary, or the principle that the legislature and the executive are accountable to the public for the spending of public funds. [ 63 ] She went on to state at paragraph 41 that: The proper constitutional role of s 96 courts does not permit judges to use their inherent jurisdiction to enter the field of political matters such as the allocation of public funds, absent a Charter challenge or concern for judicial independence… [ 64 ] Further at paragraph 43 she noted: “… the allocation of resources between competing priorities remains a policy and economic question; it is a political decision and the legislature and the executive are accountable to the people for it.” [ 65 ] In my view, even though Criminal Lawyers’ Association dealt with the allocation of financial resources pertaining to the administration of criminal justice, the principles enunciated therein also apply to the provision of mental health services.

Monies available to fund such services come from the public purse. As stated by the Privy Council in Auckland Harbour Board v The King , [1924] AC 318 at 326 [ Auckland Harbour ] , “no money can be taken out of the consolidated Fund into which the revenues of the State have been paid, excepting under a distinct authorization from parliament itself” .

While the Auckland Harbour principle may not be a complete answer to whether a judge has jurisdiction to order the SHA to fund family visits to mental health patients detained in a mental health centre, it highlights that it is the legislative and executive branches of government that bear responsibility for weighing public priorities, and allocating the limited financial resources available to them. [ 66 ] There is no question that court decisions can have ancillary financial consequences.

The question, however, is whether a court has jurisdiction to order that those financial consequences be met from the public purse. [ 67 ] The Supreme Court has repeatedly held, absent constitutional imperative, the legislatures are under no obligation to create a particular benefit. Rather, as a matter of public policy, legislatures are free to target and fund programs of their own choosing, provided those programs, or the benefits conferred thereby, are not applied in a discriminatory manner: Auton (Guardian ad litem of) v British Columbia (Attorney General) , 2004 SCC 78 at para 4 ; [2004] 3 SCR 657.

Similarly, in Flora v Ontario Health Insurance Plan , 2008 ONCA 538 , 295 DLR (4th) 309, Cronk J.A. rejected the appellants assertion that there is a positive right to a certain level of health care. In short, she said the manner in which funds are allocated is a matter of government policy not judicial discretion.

While not factually similar, this point is illustrated in Phaneuf v Ontario , 2009 CarswellOnt 9308 (WL) (Sup Ct) (Div Ct) : [39] The Minister of Health has a prodigious amount of work done by staff to determine and rationalize every aspect of allocating funds for beds in hospitals generally and particularly in the 11 designated hospitals that provide assessments under the various legislation relevant to mental health. Priorities need to be set and rationalization of services is critical to the funding for specialized units be they prenatal, forensic psychiatry or other specialized services.

Because of all the variables involved when an accused is either willing to be or can be placed, it is my view that it would be inappropriate to mandate that the Health Ministry be able to provide a bed immediately for an accused ordered to be assessed. If the legislature intended that a bed be provided immediately it would have said so. It did not.

To make it mandatory to have the bed available immediately would be unfair to the other members of society in the province that need a bed for other equally important medical procedures or assessments. [ 68 ] In a like manner, if the Legislature had intended to fund family visits to mental health patients detained pursuant to s. 24.1 of the MHSA , it would have said so. [ 69 ] It was no doubt in S.B.’s best interests to have family visits.

Having said that, in the circumstances at hand where there was no specific provision authorizing the payment of the funds, and no Charter or constitutional obligation to provide such payment was established, the Hearing judge had no jurisdiction to order those visits be funded by the SHA. The resources available to meet mental health services are finite and come from the public purse. Where and how those resources are allocated are matters of public policy.

Decisions pertaining to the allocation of those resources belong to the executive and legislative branches of government who in turn are answerable to the people of this province. 3. Procedural fairness a. Parties positions [ 70 ] The SHA contends that no request to fund family visits was made by either S.B. or her mother, and that the Hearing judge made the order without notice to the parties and without giving it an opportunity to be heard.

In effect the SHA is arguing that it was denied procedural fairness. [ 71 ] S.B. takes the position that family visits were a significant issue before the Hearing judge and were clearly in his mind when he granted the long-term detention order. S.B.’s psychiatrist acknowledged that contact with family was an important part of S.B.’s treatment and recovery. S.B. submits that while no “formal” application for funding was made, there was a de facto application.

She submits that the SHA was well aware of her desire to maintain her family connections and as such, the SHA should not have been surprised by the Hearing judge’s funding order. b. Analysis

[72] Two important aspects of procedural fairness in the context of judicial proceedings are the right to know the case to beanswered and the right to be heard (audi alteram partem). The latter includes the right to respond to the issues raised. [73] A careful review of the record in this proceeding discloses that the main issue with respect to the granting of the long-termdetention order was which mental health centre S.B. would be sent to. S.B. and her mother wanted the detention to occur in the mentalhealth unit of the acute care hospital near where her family resides.

On the other hand, S.B.’s psychiatrist was recommending placementin a residential mental health centre several hours away. [74] There was evidence of the importance of family support to S.B.’s treatment and rehabilitation and evidence that, if S.B. wasdetained at the residential facility, visits with her family would be problematic. There was, however, no request to fund family visits.Further, evidence pertaining to that issue was missing.

There was no evidence of the family’s financial circumstances, the potential costsof such visits, the ideal frequency of visits, who would be covered by such visits, or the ability of the SHA to provide funding. [75] In closing arguments no request for funding was mentioned. The issue of family visits was raised solely with respect to thequestion of where S.B.’s detention would occur. That issue is distinct from the question of whether family visits should be funded by theSHA.

It appears the Hearing judge raised and determined the funding issue on his own motion without notice to any of the parties, andwithout giving them an opportunity to be heard. This was a breach of procedural fairness. In my view, it was a significant breach given thelack of relevant evidence and the potential arguments to be made on the point. [76] Normally a breach of procedural fairness renders a decision void ab initio, and the matter must be remitted to the Court ofQueen’s Bench for determination.

However, as the Hearing judge had no jurisdiction to make the funding order, returning this matter tothe Court of Queen’s Bench would be manifestly unfair because the ultimate result is a foregone conclusion. If the Hearing judge had nojurisdiction to make the funding order, the order could not be made.

A reconsideration of the issue would be futile, meaningless and serveno useful purpose: Canada (Minister of Citizen and Immigration) v Vavilov, 2019 SCC 65 at para 142, 441 DLR (4th) 1; Mobile OilCanada Ltd v Canada–Newfoundland Offshore Petroleum Board, (SCC), [1994] 1 SCR 202 at 228 and Feng vSaskatchewan (Economy), 2020 SKCA 6 at paras 108–118, 70 Admin LR (6th) 237. [77] In

summary, while there was a breach of procedural fairness, in light of this Court’s decision respecting jurisdiction, it wouldserve no useful purpose to remit the matter to the Court of Queen’s Bench. VI. CONCLUSION [78] The SHA’s appeal is allowed. The portion of the Hearing judge’s decision requiring the SHA to fund family visits is hereby setaside. There shall be no order as to costs. “Ryan-Froslie J.A.” Ryan-Froslie J.A.I concur. “Schwann J.A.” Schwann J.A.I concur. “Leuer J.A.” Leurer J.A.