Paluska Jr. v. Cava; The Attorney General of Ontario et al., Intervenors [Indexed as: Paluska, Jr. v. Cava]
59 O.R. (3d) 469
[2002] O.J. No. 1767
Docket No. M28254 (C37150)
Court of Appeal for Ontario,
Laskin, Borins and Gillese JJ.A.
May 6, 2002
Charter of Rights and Freedoms -- Notice of constitutional question -- Appellant appealing decision of Consent and Capacity Board that he was incapable of consenting to treatment -- Appellant denied legal aid for appeal -- Respondent bringing motion to dismiss appeal for delay -- Motions judge on her own motion found that appellant had right under s. 7 of Charter to publicly-funded counsel to represent him on appeal and ordered Ontario government to pay appellant's legal fees -- Notice to Attorney General mandatory when remedy is sought under s. 24(1) of Charter for failure of government to act -- Absence of notice rendering decision invalid and not merely voidable upon showing of prejudice -- Canadian Charter of Rights and Freedoms, s. 7 -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109.
P appealed the decision of the Consent and Capacity Board that he was incapable of consenting to treatment. He was refused legal aid for his appeal. His doctor brought a motion to dismiss the appeal for delay. The motions judge, on her own motion, found that P had a constitutional right under s. 7 of the Canadian Charter of Rights and Freedoms to legal representation on his appeal and ordered the Ontario government to pay his legal fees. The motions judge adjourned the motion and the formal issuance of her order and ordered counsel for the doctor to serve the Director of the Legal Aid Plan and the Public Guardian and Trustee with the motion materials. She did not order that counsel serve the Attorney General, who had no notice of the proceedings up to that point. Two days before the return of the motion, counsel for Legal Aid Ontario informed counsel for the Attorney General about the proceedings in a telephone call. Counsel for the Attorney General appeared before the motions judge and requested an adjournment to obtain instructions, which was refused. The motions judge formally ordered that the Public Guardian and Trustee arrange for legal counsel for P and that the Ontario government pay counsel's fees. The Attorney General appealed and brought a preliminary motion for a determination that the order was invalid because he was not given notice under s. 109 of the Courts of Justice Act.
Held, the motion should be granted.
Section 109(1) of the Courts of Justice Act required that the Attorney General be given notice of the motions judge's order before it was made. The provision is mandatory where a remedy is sought under s. 24(1) of the Charter for the failure of the government to act. The telephone notice of the proceedings given to the Attorney General's office by counsel for Legal Aid Ontario did not constitute the notice required by s. 109(1). Even if the formal defects in the notice were overlooked, by the time the Attorney General's office received the telephone call, the motions judge had already made her order. In the absence of notice, the decision was invalid, and not merely voidable upon a showing of prejudice.
MOTION by an appellant for a determination that an order of Molloy J. (2001), 2001 28000 (ON SC), 55 O.R. (3d) 681 (S.C.J.) was invalid.
Eaton v. Brant County Board of Education, 1997 366 (SCC), [1997] 1 S.C.R. 241, 31 O.R. (3d) 574n, 142 D.L.R. (4th) 385, 207 N.R. 171, 41 C.R.R. (2d) 240, consd Other cases referred to New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, 216 N.B.R. (2d) 25, 177 D.L.R. (4th) 124, 244 N.R. 276, 552 A.P.R. 25, 66 C.R.R. (2d) 267, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203; Ontario (Workers' Compensation Board) v. Mandelbaum Spergel Inc. (1993), 1993 8505 (ON CA), 12 O.R. (3d) 385, 100 D.L.R. (4th) 742, 18 C.B.R. (3d) 22, 46 C.C.E.L. 136 (C.A.) (sub nom. Ontario (Workers Compensation Board) v. Evelyn Stevens Interiors Inc., Evelyn Stevens Interiors Ltd., Re); R. v. Briggs (2001), 2001 24113 (ON CA), 55 O.R. (3d) 417, 86 C.R.R. (2d) 196, 157 C.C.C. (3d) 38, 45 C.R. (5th) 99 (C.A.); R. v. Rowbotham (1988), 1988 147 (ON CA), 25 O.A.C. 321, 35 C.R.R. 207, 41 C.C.C. (3d) 1, 63 C.R. (3d) 113 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 11, 24(1) Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 61.16(2.2)
Anita Szigeti, for appellant (respondent in appeal). Sean Hanley, for intervenor (appellant/moving party). Annie Finn, for intervenor (respondent in appeal).
The judgment of the court was delivered by
LASKIN J.A.: --
A. Introduction
1The respondent Joseph John Paluska Jr. was found incapable of consenting to treatment by the Consent and Capacity Board. He appealed the Board's decision to the Superior Court of Justice. Molloy J. decided that Mr. Paluska had a constitutional right under s. 7 of the Canadian Charter of Rights and Freedoms to publicly-funded counsel to represent him on the appeal. She ordered the Government of Ontario to pay his counsel's legal fees.
2The Attorney General of Ontario has appealed this decision. On this preliminary motion, the Attorney General asks that the order of the motions judge be declared invalid because he was not given notice of her proposed order as required by s. 109(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. I would grant the motion. Under s. 109, notice to the Attorney General is mandatory when a Charter remedy is sought and the absence of notice renders the decision invalid.
B. Background Facts
3Mr. Paluska is a patient at the Centre for Addiction and Mental Health in Toronto. At his trial on a charge of mischief he was found not criminally responsible on account of mental disorder. His treating psychiatrists believe that he needs anti-psychotic and mood-stabilizing medication. In February 2001, however, his doctor, the respondent Dr. Cava, found that Mr. Paluska lacked the capacity to consent to the proposed psychiatric treatment. His substitute decision-maker -- his father -- will consent to the treatment.
4But Mr. Paluska challenged Dr. Cava's finding before the Board. On March 2, 2001, after hearing evidence, the Board upheld Dr. Cava's finding. Mr. Paluska appealed the Board's order but did not perfect his appeal. Dr. Cava then brought a motion to dismiss Mr. Paluska's appeal for delay or for an order that he be treated while his appeal was outstanding. It was on Dr. Cava's motion that Molloy J. made the order in question before us.
5At the hearing before the Board, Mr. Paluska was represented by counsel on a legal aid certificate. But he was refused legal aid for his appeal, and he did not appeal that refusal to the Legal Aid Area Committee. Thus, Mr. Paluska represented himself when, on September 11, 2001, Dr. Cava's motion first came before the motions judge. Dr. Cava's motion raised a dilemma for Molloy J.: Mr. Paluska needed a lawyer to have a meaningful right of appeal; but Dr. Cava believed Mr. Paluska needed immediate treatment and, without it his condition would deteriorate. The motions judge solved the dilemma, not by dismissing Mr. Paluska's appeal for delay or by ordering interim treatment, but by ordering that he be given publicly-funded counsel. In her opinion, "the appropriate remedy is to direct the appropriate authority to provide legal counsel to Mr. Paluska, funded by the government whether through Legal Aid or otherwise."
6The motions judge gave this remedy without being asked to do so by either side and without any notice to the Attorney General of Ontario. In her view, Mr. Paluska's constitutional right to life, liberty and security of the person under s. 7 of the Charter required that he have legal representation. She referred by analogy to this court's decision in R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1, 25 O.A.C. 321 (C.A.) which held that forcing an indigent accused to proceed to trial without counsel where the charge is serious and the case complex may violate that accused's fair trial rights under ss. 7 and 11 of the Charter. The motions judge held at para. 16:
The consequences for Mr. Paluska of the matters raised in this appeal are as serious as the consequences of the kind of criminal charges that have been found to warrant a Rowbotham type order. He faces a loss of liberty as well as forcible treatment with anti-psychotic and other drugs. The legal issues on the appeal are complex, both in respect of the medical issues involved and the legal standard to be applied on such appeals. Further, his own inability to deal effectively with the issues raised must be taken into account.
7At para. 17 the motions judge concluded that she could make the order for publicly-funded counsel "as part of my inherent jurisdiction to control the process of this court and the administration of justice". She saw her responsibility "to ensure that the statutory right of appeal given to Mr. Paluska can be exercised by him in a manner that respects his rights under the Charter of Rights and Freedoms. This requires legal representation and I will therefore order that it be provided."
8Although the motions judge effectively made the order for publicly-funded counsel on September 12, 2001, she adjourned the motion and the formal issuance of her order until September 21. She was concerned about the unexplained failure of Legal Aid to give Mr. Paluska a certificate, and she thought that the Public Guardian and Trustee might assist the court. She ordered counsel for Dr. Cava to serve both the Director of the Legal Aid Plan and the Public Guardian and Trustee with the motion materials. She did not, however, order that Dr. Cava's counsel serve the Attorney General, who, up until then, had no notice of these proceedings.
9On September 19, 2001, two days before the return of the motion, counsel for Legal Aid Ontario, in a telephone call, informed counsel for the Attorney General about the proceedings. The Attorney General's office received the motion material on September 20. Counsel for the Attorney General appeared before the motions judge on September 21 and requested an adjournment to obtain instructions, which was refused. The motions judge decided that the question whether Mr. Paluska should be treated needed to be resolved quickly. She formally ordered that the Public Guardian and Trustee arrange for legal counsel for Mr. Paluska for his appeal and that the Government of Ontario pay that counsel's reasonable fees at Legal Aid rates.
10The Attorney General appealed the order to this court and brings this preliminary motion for a determination that the order was invalid because he was not given notice under s. 109.
C. Analysis
11Before discussing the s. 109 issue, I will briefly deal with two subsidiary issues: one relates to whether we should decide the motion even though the appeal is moot; the other relates to whether we should address the s. 109 issue on a preliminary motion rather than on the appeal itself.
12The government's appeal is moot because, although it disagreed with the motions judge's order, it voluntarily paid the legal fees for Mr. Paluska's appeal regardless of the outcome of its own appeal. Mr. Paluska's appeal from the Board's decision has now been disposed of by the courts. Greer J. dismissed his appeal (reported at [2001] O.J. No. 4010) and his further appeal to this court was dismissed for delay on January 29, 2002.
13Despite its mootness, I think we should decide the s. 109 issue, largely for the reasons the Supreme Court of Canada exercised its discretion to decide whether s. 7 of the Charter entitled a mother in contested child protection proceedings to government-funded legal counsel. See New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124. The appeal in the New Brunswick case was also moot by the time it reached the Supreme Court of Canada because the children had already been returned to the mother's care. The Supreme Court, nonetheless, heard the appeal because it raised an important question that may well arise again, it was presented on a proper evidentiary record, and it was fully argued. Similar considerations apply here. Thus, I do not consider the mootness of the appeal to be a bar to determining the Attorney General's motion.
14I also think it appropriate to decide the s. 109 issue on this preliminary motion. A panel of this court has jurisdiction to do so under rule 61.16(2.2) of the Rules of Civil Procedure and I would exercise that jurisdiction in this case. If granted, the motion will finally dispose of the appeal and thus will economize the parties' and the courts' resources. Additionally, both sides agree that we proceed in this way. I therefore turn to whether the failure to comply with s. 109 of the Courts of Justice Act makes the order for public-funded counsel invalid.
15Section 109(1) states:
109(1) Notice of constitutional question -- Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:
The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.
A remedy is claimed under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.
The notice must be in writing. Section 109(2.1) states:
109(2.1) Form of notice -- The notice shall be in the form provided for by the rules of court or, in the case of a proceeding before a board or tribunal, in a substantially similar form.
16The notice requirement has two related purposes: to ensure that governments have a full opportunity to support the constitutional validity of their legislation or to defend their action or inaction; and to ensure that courts have an adequate evidentiary record in constitutional cases. See Eaton v. Brant County Board of Education, 1997 366 (SCC), [1997] 1 S.C.R. 241, 142 D.L.R. (4th) 385.
17The questions raised by this motion are whether the motions judge's proposed order triggered s. 109, whether the telephone notice received by the Attorney General's office on September 19, 2001 complied [with] the section and, if not, whether the absence of notice renders the order for publicly- funded counsel invalid.
18Section 109(1) required that the Attorney General of Ontario be given notice of the motions judge's order before it was made. The provision is mandatory where a remedy is sought under s. 24(1) of the Charter for the failure of the Ontario government to act. Here, although the motions judge did not expressly refer to s. 24(1), she must have made her order under that section of the Charter because she found that the government's failure to pay for a lawyer for Mr. Paluska violated his s. 7 rights.
19The telephone notice of the proceedings given to the Attorney General's office by counsel for Legal Aid Ontario did not constitute the notice required by s. 109(1). Even if one were to overlook the formal defects in the notice -- the notice was not in writing and the constitutional question was not specified -- by the time the Attorney General's office received the telephone call on September 19, the motions judge had already made her order. Section 109 obviously requires notice before a Charter remedy is given, not after. The remedy given in this case was awarded without first complying with s. 109.
20That leaves to be decided the legal effect of non- compliance. The parties have competing positions. The Attorney General contends that the absence of notice renders the order of the motions judge invalid. Counsel for Mr. Paluska contends that the order is not invalid either because the Attorney General cannot show it was prejudiced by the absence of notice or because the court may dispense with notice despite the mandatory wording of s. 109.
21Both s. 109(2) of the Courts of Justice Act and the Supreme Court of Canada's decision in Eaton resolved this debate in favour of the Attorney General's position. Section 109(2) specifies that if notice is not given, a remedy under s. 24(1) of the Charter shall not be granted:
109(2) Failure to give notice -- If a party fails to give notice in accordance with this section, the Act, regulation, by-law or rule of common law shall not be adjudged to be invalid or inapplicable, or the remedy shall not be granted, as the case may be.
22In Eaton, at para. 49, the Supreme Court considered whether "in the absence of notice the decision is ipso facto invalid" or whether "a decision in the absence of notice is voidable upon a showing of prejudice". Sopinka J. favoured the view that notice is mandatory and the failure to give it invalidates the decision whether or not the government shows prejudice. In so concluding, he relied on the dissenting judgment of Arbour J.A. in a case in this court, Ontario (Workers' Compensation Board) v. Mandelbaum Spergel Inc. (1993), 1993 8505 (ON CA), 12 O.R. (3d) 385, 100 D.L.R. (4th) 742 (C.A.). Sopinka J. wrote, at para. 53:
In view of the purpose of s. 109 of the Courts of Justice Act, I am inclined to agree with the opinion of the New Brunswick Court of Appeal in D.N. v. New Brunswick (Minister of Health & Community Services), supra, and Arbour J.A. dissenting in Mandelbaum, supra, that the provision is mandatory and failure to give the notice invalidates a decision made in its absence without a showing of prejudice. It seems to me that the absence of notice is in itself prejudicial to the public interest.
23Admittedly, as Sopinka J. recognized at para. 54, cases might arise where the failure to serve a written notice may not be fatal "either because the Attorney General consents to the issue's [sic] being dealt with or there has been a de facto notice, which is the equivalent of a written notice." And, because it was unnecessary to do so in that case, Sopinka J. declined to express a final opinion on whether the absence of notice made the decision invalid only on a showing of prejudice.
24Nonetheless, the prevailing view -- supported by the wording of the statute and affirmed by this court's recent decision in R. v. Briggs (2001), 2001 24113 (ON CA), 55 O.R. (3d) 417, 157 C.C.C. (3d) 38 (C.A.) -- is that the absence of notice by itself renders the decision invalid. Moreover, none of the alternative possibilities mentioned by Sopinka J. apply here. The Attorney General did not consent to the issue being decided in the absence of notice, it did not receive de facto notice equivalent to written notice, and, in my view, it was prejudiced by the absence of notice. It was prejudiced because it was ordered to pay out public money without having any opportunity to persuade the court why it should not have to do so. Also, in the absence of notice, the two purposes of s. 109 were not met. The government was not able to show why its failure to pay for counsel for Mr. Paluska did not violate s. 7 of the Charter, and the court was deprived of a more complete evidentiary record. Accordingly, I conclude that the motions judge's order requiring the Ontario government to pay Mr. Paluska's counsel's legal fees is invalid.
25That said, I have considerable sympathy for what the motions judge did. She was faced with a proceeding that had to be dealt with urgently, that had potentially serious consequences for Mr. Paluska, and yet a proceeding in which he had no ability to represent himself. She had compelling reasons to order publicly-funded counsel and that order may well have been made no matter what the Attorney General said. Moreover, so-called Rowbotham orders -- to which the motions judge analogized -- are often made without formal notice to the Attorney General.
26But Rowbotham orders are made in criminal proceedings in which a Crown attorney can represent the Attorney General's interest and are now common enough that formal notice is likely impliedly waived. There is no parallel here. The Crown was not represented before the motions judge and the order that she made, though probably sensible, was nonetheless novel.
27Once the motions judge contemplated ordering publicly- funded counsel for Mr. Paluska, she should have directed that the Attorney General be given the notice required by s. 109. To meet the urgency of the situation, under s. 109(2.2) she could have shortened the 15-day notice period:
109(2.2) Time of notice -- The notice shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise.
S.O. 1994, c. 12, s. 42(1).
Indeed, the motions judge did not issue her formal order for funding until nine days after she had effectively made it. Nine days would have been ample time for the Attorney General to present its position.
28I would therefore grant the motion and declare the September 21, 2001 order of the motions judge invalid. Neither party asked for costs of this motion and I would therefore make no order for costs.
Motion granted.
