J. F.S.M. A.D. 1997 No. 96 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE MINISTER OF SOCIAL SERVICES AND H.B. AND R.B. RE: R.J.B., Jr. L. Sandstrom-Smith on behalf of the Minister of Social Services I.D. McKay, Q.C. on behalf of the Public Trustee JUDGMENT ARCHAMBAULT J. November 3, 1997 The Minister of Social Services has applied for anorder that the Public Trustee be served with notice of aprotection hearing and act as litigation guardian for H.B. H.B. is the mother of the child, R.J.B., Jr., born January 5,1995, and is alleged to be of "unsound mind". The child was apprehended at birth and is currently the subject of child protection hearing. In support of his application the Minister relies on The Public Trustee Act, S.S. 1983, c. P- 43.1 as amended, and, alternatively, on the court's inherent parens patriae jurisdiction. The application is opposed by the Public Trustee who takes the position "that it is not the appropriate party to act as the litigation guardian on behalf of H.B." and that "The Public Trustee Act does not give the Public Trustee the jurisdiction to represent an adult under mental disability in cases other than where property interest is involved". The relevant sections of The Public Trustee Act are the following: 32(1) Where it is necessary to serve any court process on person who may be of unsound mind and who has no property guardian, whether or not that person is dependent adult, the person seeking to effect service may make an application to the court, and the court may direct that service be effected by delivering copy of the process to the public trustee or to any other person the court considers to be suitable. (2) The public trustee or the person directed to be served pursuant to subsection (1) shall act as litigation guardian of the person alleged to be of unsound mind: (a) in the case of the public trustee, after 30 days from the date of the order made pursuant to subsection (1); (b) in the case of any other person directed to be served, from the date service of the court process is effected; unless the court otherwise directs. 44 Where the public trustee is served under this Act with notice of an application to court, he shall take the steps or proceedings he considers necessary or advisable for the protection of the person on whose behalf he is served. 44.1 An appointment of the public trustee by the court pursuant to this or any other Act may not be made until: (a) the public trustee has had the opportunity to make representations respecting the appointment; or (b) the public trustee consents to the appointment. While the wording of s. 32 is somewhat ambiguous, inmy opinion the Public Trustee is right in asserting that theAct does not authorize it to represent an adult under mentaldisability in cases other than where a property interest isinvolved. That becomes more evident (although not crystal clear) when s. 32 is considered in the context of the entire Act. It is intended to authorize the Public Trustee to protect and administer the property of infants and dependant adults. Nowhere does the Act authorize the Public Trustee toact as the personal guardian of a dependant or mentallyincompetent adult. Hrabinsky J. came to similar conclusion in Re: S.L.R. [No. 2] (1993), 1992 CanLII 7824 (SK QB), 104 Sask. R. (Sask. Q.B.). At pages and he stated: In certain jurisdictions Public Trustees have by statute been given specific authority to represent infants and dependant adults in matters affecting their person as well as their property. This is so in British Columbia by virtue of s. 2(2) of the Public Trustee Act, R.S.B.C., c. 348, and in Manitoba by virtue of s. 80 of the Manitoba Mental Health Act, R.S.M., c. M-110, and s. of the Public Trustee Act, R.S.M., P-275. In this jurisdiction there is no equivalent statutory provision giving the Public Trustee authority to represent infants in matters affecting their persons. conclude that the Public Trustee Act, S.S. 1983, c. P-43.1, gives the Public Trustee statutory mandate to represent infants where specifically described property interest arises but nothing in the Act gives the Public Trustee jurisdiction to represent an infant in cases other than where property interest is involved. Queen's Bench Rules 22(1)(b) and 46 provide as 22(1) Except where otherwise provided, document may be served on an individual: (b) who may be of unsound mind and who has no guardian with authority to commence, defend, compromise or settle any legal proceeding relating to the person or the estate of the person, as the case may be, by leaving copy with: (i) the Public Trustee; or (ii) any other person the court considers suitable; pursuant to section 32 of The Public Trustee Act; 46(1) Unless otherwise ordered or provided person with respect to whom an order has been made under The Dependant Adults Act or, person under mental disability, other than minor, may commence, continue or defend an action by litigation guardian. (2) For the purposes of this rule, "litigation guardian" means: (a) property guardian appointed pursuant to The Dependent Adults Act with authority to commence, defend, compromise or settle any legal proceeding that relates to the estate of the dependent adult; (b) personal guardian appointed pursuant to The Dependent Adults Act with the authority to commence, defend, compromise or settle any legal proceeding that does not relate to the estate of the dependent adult; (c) the property guardian of person in respect of whom certificate of incompetence has been issued and is in effect pursuant to The Mentally Disordered Persons Act; (d) until the court orders otherwise; (i) the Public Trustee; or (ii) any other person the court considers suitable; who has been served pursuant to section 32 of The Public Trustee Act on behalf of person who may be of unsound mind and who has no guardian with authority to commence, defend, compromise or settle any legal proceeding relating to the person or the estate of the person, as the case may be; (e) the litigation guardian of minor who has reached the age of majority; or (f) any other person appointed by the court. These Rules are intended to ensure that dependent adult or person of unsound mind is properly and fairly represented in any litigation: Szwydky v. Magiera (1989), 71 Sask. R. 273 (Q.B.) and Regina and District Association for Community Living Inc. v. Public Trustee of Saskatchewan (1992), 1992 CanLII 8172 (SK QB), 99 Sask. R. 274 (Q.B.). It is significant that the inclusion of the Public Trustee in the definition of litigation guardian (paragraphs 46(2)(d) and 22(1)(b)) are circumscribed by reference to s. 32 of The Public Trustee Act. Therefore the Rules do not enlarge the provisions of the Act and cannot serve as the basis to appoint the Public Trustee as litigation guardian to represent the personal interests as opposed to the property interests of dependent adult or person under mental disability. To the extent that there is conflict (if such there be) between The Public Trustee Act and Queen's Bench Rules 22 and 46, the Act must prevail. I, therefore, conclude that The Public Trustee Actdoes not authorize the appointment of the Public Trustee toact as litigation guardian for H.B. in the matter of the childprotection proceedings concerning her son, R.J.B., Jr. However that does not fully determine the issue. The Minister contends that the court can and should appoint the Public Trustee as litigation guardian for H.B. in the exercise of its inherent parens patriae jurisdiction. The Supreme Court of Canada in the case of Re: Eve (1987), 1986 CanLII 36 (SCC), 31 D.L.R. (4th) made it clear that superior court of general jurisdiction, such as our Court of Queen's Bench, has continuing parens patriae jurisdiction. At p. 17, LaForest J. states: It continues to this day, and even where there is legislation in the area, the courts will continue to use the parens patriae jurisdiction to deal with uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit. And at p. 28: The parens patriae jurisdiction is, as have said, founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the "best interest" of the protected person, or again, for his or her "benefit" or "welfare". The situation under which it can be exercised are legion; the jurisdiction cannot be defined in that sense. As Lord MacDermott put it in J. v. C., [1970] A.C. 668 at p. 703, the authorities are not consistent and there are many twists and turns, but they have inexorably "moved towards broader discretion, under the impact or changing social conditions and the weight of opinion .". In other words, the categories under which the jurisdiction can be exercised are never closed. Thus agree with Latey J. in Re X, [(a minor), [1975] All E.R. 697] at p. 699, that the jurisdiction is of very broad nature, and that it can be invoked in such matters as custody, protection or property, health problems, religious upbringing and protection against harmful associations. This list, as he notes, is not exhaustive. No one has applied to be appointed as litigation guardian on behalf of H.B., nor as amicus curiae. Furthermore it was determined by the Department of Social Services that there were no family members or other individuals willing or able to seek guardianship appointment. Pursuant to itsparens patriae jurisdiction, this Court has a responsibilityto protect the interests of H.B.; she requires independentrepresentation to ensure that her rights are protected (see:Re: Eve, supra, and S.L.R. [No. 1] (1993), 1992 CanLII 8052 (SK QB), 104 Sask. R. 81). If the court fails to intervene in this regard, H.B. will beleft in limbo, a victim of the system. The Public Trustee in this province has acted in number of child protection cases to protect the interests of mentally deficient parent who is unable to act on his/her own behalf. It would appear that in each case the Public Trustee consented to act and as result was appointed by the court to act as litigation guardian. In my opinion, the Public Trustee is the appropriate person to act as litigation guardian for H.B. Not only does the Public Trustee have the capability and competence to properly and fairly represent her but, as well, is indifferent as to the outcome of the proceedings. The Public Trustee best fits the criteria enunciated by Wright J. in Szwydky v. Magiera, supra. Besides, no one else has come forward to fulfill that role. It is therefore my intention to appoint the Public Trustee as amicus curiae to act on behalf of H.B., upon being satisfied that she is unable to act for herself. In this regard have ordered an assessment pursuant to s. 32 of The Child and Family Services Act, S.S. 1989-90, c. C-7.2. Anorder will issue accordingly unless the Public Trustee, within10 days from the date of this order, shows cause as to why itis not the appropriate party to so act. There shall be no order as to costs.
The Minister of Social Services applied for an order that the Public Trustee be served with notice of a protection hearing and act as litigation guardian for H.B. who was alleged to be of unsound mind. H.B.'s child born in 1995 was apprehended at birth and was currently subject of a child protection hearing. The Minister relied on the Public Trustee Act and, alternatively, on the court's inherent parens patriae jurisdiction.HELD: The Public Trustee was appointed amicus curae to act on behalf of H.B. upon being satisfied she is unable to act for herself. An assessment was ordered pursuant to s32 of the Child and Family Services Act. The order was to issue unless the Public Trustee shows cause as to why it is not the appropriate party within 10 days from the date of this order. 1)While the wording of s32 is ambiguous the Public Trustee was correct that the Act does not authorize it to represent an adult under a mental disability other than where a property interest is involved. Nowhere does the Act authorize the Public Trustee to act as personal guardian of a dependant or mentally incompetent adult. The PT Act does not authorize its appointment as litigation guardian in the matter of child protection proceedings. 2)Pursuant to its parens patriae jurisdiction the Court has a responsibility to protect the interests of H.B. who requires independent representation to ensure her rights are protected. If the court failed to intervene H.B. will be left in limbo, a victim of the system.