DATE: 20060630
DOCKET: C43619
COURT OF APPEAL FOR ONTARIO
ROSENBERG, GOUDGE and FELDMAN JJ.A.
B E T W E E N :
THE DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE FOR THE PROVINCE OF BRITISH COLUMBIA
Peter E. J. Wells
for the appellant
S.J.B.
Shane H. Brady
Applicant
for the appellants K.B.
(Respondent in appeal)
and D.A.S.
- and -
Marvin Kurz and
Charlotte Murray
S.J.B., BY HER LITIGATION GUARDIAN, K.B. AND K.B. AND D.A.S.
for the respondent, Director
of Child, Family and
Community Service for the
Province of British Columbia
Respondents
(Appellants)
Heard: April 7, 2006
On appeal from the orders of Justice Ruth E. Mesbur dated April 29, 2005, and Justice Victor Paisley dated May 3, 2005, of the Superior Court of Justice.
ROSENBERG J.A.:
[1] S.J.B., a resident of British Columbia, is one of Jehovah’s Witnesses. She objects on religious grounds to having blood transfusions. In December 2004, when she was fourteen years of age, S.J.B. was diagnosed with bone cancer. She has now been successfully treated and is cancer-free. However, in the course of her treatment in British Columbia, S.J.B.’s physicians became convinced that she might need a blood transfusion to survive and that the need for the transfusion might arise suddenly. Courts in British Columbia have made orders at the request of The Director of Child, Family and Community Service for the Province of British Columbia (the respondent) that gave S.J.B.’s physicians the right to transfuse her, without her consent and without the consent of her parents. On April 11, 2005, Boyd J. of the Supreme Court of British Columbia dismissed S.J.B.’s appeal from the order permitting the transfusion without her consent.
[2] Later in April, against the advice of her physician that she should remain in Vancouver, S.J.B. and her parents (the appellants) came to Ontario. The reason for the attendance in Toronto is a matter of dispute. The appellants claim that they came to Toronto to seek a second opinion concerning treatment and, specifically, whether treatment options were available that did not involve transfusions. The respondent claims that the appellants came to Ontario to avoid the British Columbia court orders and to avail themselves of Ontario’s consent to treatment regime.
[3] On April 27, 2005, Boyd J. made an ex parte order granting custody of S.J.B. to the Director. The Director’s counsel then attended in Toronto and obtained an ex parte order from Mesbur J. recognizing and enforcing Boyd J.’s order. This order was made Friday afternoon, April 29, 2005. On the evening of April 30, 2005, the appellants attended before Jarvis J. to set aside Mesbur J.’s order. Jarvis J. refused to set aside the order but adjourned the motion to Tuesday, May 3, to permit the appellants to adduce evidence. On May 3, Paisley J. confirmed Mesbur J.’s order.
[4] In accordance with the Ontario orders, S.J.B. returned to British Columbia. She and her parents then reached an agreement with the Director allowing her to complete her treatment at a hospital in New York. That hospital has considerable experience in treating members of Jehovah’s Witnesses without transfusions. As a result of this agreement, the order of Boyd J. was vacated and the appellants gave up their right to appeal her order.
[5] Despite the fact that Boyd J.’s order has been vacated, the appellants appeal the orders of Mesbur J. and Paisley J. The Director argues that the appeal is moot and that this court should not exercise its discretion to hear the appeal. The court reserved its decision on the mootness argument and heard argument on the appeal. In my view, the appeal is moot but this is an appropriate case to exercise our discretion to determine some, but not all, of the issues raised on the appeal. For the following reasons, I would allow the appeal and set aside the orders of Mesbur J. and Paisley J.
THE CHRONOLOGY
[6] A detailed review of the facts is not necessary to understand the mootness argument and the other issues raised by the appeal. However, below is a chronology of the events. Where necessary, I will elaborate on some of those events.
December 2004 S.J.B. diagnosed with bone cancer; her physician informs her that transfusion may be necessary in course of treatment; S.J.B. and parents inform physician of objection to transfusion.
February 15, 2005 Meeting with S.J.B., her mother, the Director’s counsel and hospital staff to inform S.J.B. and mother that Director may bring emergency application to permit transfusion.
March 7 – 15, 2005 Events during treatment cause physicians to ask Director to obtain authorization to transfuse.
March 16, 2005 Director brings emergency application under s. 29 of Child, Family and Community Service Act, R.S.B.C. 1996, c. 46. Section 29 permits Director to apply for an order authorizing health care where a child or parent of a child refused to give consent to health care and the health care is necessary to preserve the child’s life.
March 18, 2005 Meyers Prov. Ct. J. makes order authorizing physician to administer blood or blood products. Appellants prohibited from obstructing transfusion. S.J.B. found to have capacity to refuse treatment but her decision overridden in her best interests.
March 24, 2005 Meyers Prov. Ct. J. dismisses application to set aside his order.
April 7 – 8, 2005 Hearing before Boyd J. of appeal from order of Meyers Prov. Ct. J. Boyd J. finds that appellants were accorded procedural fairness, that order properly made and that no infringement of S.J.B.’s rights under s. 2(a), 7 and 15 of Charter of Rights and Freedoms.
April 21, 2005 S.J.B. and mother attend for appointment at hospital. Treating physician agrees to speak to physician in Ottawa about transfusion alternatives. S.J.B.’s request to travel to Vernon (her home) for weekend denied for medical reasons.
April 25, 2005 S.J.B. fails to attend scheduled medical appointment. British Columbia physician advised by physician at Toronto Hospital for Sick Children that S.J.B. and parents had attended without appointment to request transfer of care.
April 27, 2005 Director brings ex parte application before Boyd J. Order granted inter alia giving Director interim custody and prohibiting removal of S.J.B. from British Columbia.
April 29, 2005 Mesbur J. grants ex parte application recognizing and directing enforcement of April 27 order under s. 41 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. Because Mesbur J. believes that S.J.B.’s whereabouts are being withheld, she also makes an order under s. 36 allowing for child’s apprehension by the police.
April 30, 2005 Jarvis J. adjourns motion by appellants to stay or set aside April 29, 2005 orders on condition that S.J.B. and parents appear in court on May 3. In his endorsement, Jarvis J. provides in part as follows:
I recognize the importance and the dire consequences of orders being made without notice. In my view, the family ought to have the opportunity to call evidence and make representations. To achieve this, it is my order that this motion be adjourned to May 3/05 at 10:00 a.m. to afford the family and the respondents [the opportunity] to present further materials and make more orderly submissions.
May 1, 2005 Parties reach agreement delaying police enforcement on condition appellants appear in court on May 3.
May 2, 2005 Appellants serve notices of motion to adduce viva voce evidence, set aside orders of Mesbur J. and permit S.J.B. to travel to New York State to begin treatment. Appellants also serve Notice of Constitutional Question questioning constitutional validity of the April 29 order.
May 3, 2005 Parties attend before Paisley J. Police are also in attendance. [S.J.B.’s next round of chemotherapy in B.C. scheduled to begin this day.] Paisley J. finds that Mesbur J. had jurisdiction to make order; refuses to hear viva voce evidence and confirms April 29 order. S.J.B. returns to B.C. [Parties dispute degree of involvement of police in enforcing order. S.J.B. claims she was “arrested”.]
May 9, 2005 Appellants serve notice of appeal to B.C.C.A. from order of Boyd J.
May 17, 2005 Appellants abandon appeal. Gerow J. makes consent order vacating April 27, 2005 order of Boyd J. and varying order of Meyers Prov. Ct. J.
June 1, 2005 Appeal to this court from orders of Mesbur J. and Paisley J.
ANALYSIS
Mootness
[7] The orders the appellants seek to set aside in this appeal enforced an order of the British Columbia Supreme Court. The appeal to the British Columbia Court of Appeal from that order was abandoned and the order itself has been vacated. Further, S.J.B. is now cancer-free and there is no suggestion that there is any need for such an order at this time. As a consequence, in my view, there is no longer any live controversy between the parties as regards the Ontario orders and the appeal from those orders is now moot. The Ontario orders were made in aid of a British Columbia order that has been vacated. Moreover, the parties have settled all of the issues between themselves that gave rise to the British Columbia order.
[8] The appellants submit that the appeal is not moot because they are seeking a declaration under s. 24(1) of the Charter. The theory, as I understand it, is that the Ontario courts did not accord the appellate fundamental justice because of procedural errors. However, this theory misconceives the nature of the relief this court would grant. If the orders of the Ontario courts violated the appellants’ procedural rights, this court can set aside those orders, but it would not ordinarily grant declarations that those orders violated their rights.
[9] The appellants also seek a declaration concerning S.J.B.’s right to freedom of religion under s. 2(a) of the Charter as it relates to her ability to consent to treatment and that a capable person in Ontario of any age may decide his or her medical treatment. This declaration was not sought in the courts below. There is no live controversy between the appellants and the respondent in this litigation concerning such a declaration. The Director has no interest in the rights of Ontario residents. S.J.B. is not a resident of Ontario and is not receiving any treatment in Ontario for which her consent is required. As Doherty J.A. said in Tamil Co-operative Homes Inc. v. Arulappah (2000), 2000 5726 (ON CA), 49 O.R. (3d) 566 (C.A.) at para. 16:
The parties remain adversarial only in the sense that they take different positions on the legal issues raised before the courts below. They are aptly described as opposing debaters taking affirmative and negative positions on legal propositions and not as litigants opposed in interest in an ongoing legal controversy. The appeal is moot.
[10] Nevertheless, in my view, this is an appropriate case for this court to depart from its usual practice and exercise its discretion to determine some of the issues raised in the appeal. The three criteria applied in deciding whether to exercise the discretion are whether there still exists an adversarial relationship, concern for conserving judicial resources and sensitivity to the court’s proper law-making function. As regards this last factor, it is important to bear in mind what was said in Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342 at p. 362, “Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch.”
[11] Applying these criteria I am of the view that the court should not consider the broad issues the appellants seek to litigate concerning the Ontario consent to treatment regime and the alleged infringements of S.J.B.’s s. 2(a) right. On the consent to treatment issues, there is no adversarial relationship. The Director has no interest in this aspect of the case, which concerns a statutory regime wholly different from the regime in which the Director operates in British Columbia. The parties that might be interested in this issue such as the Attorney General for Ontario and the Children’s Aid Society are not present. The concern for judicial resources also militates against hearing these issues. The court’s decision will have no practical effect on the rights of the parties. There is no indication that these issues are of a recurring nature but of brief duration justifying the use of judicial resources. With respect to the alleged infringement of s. 2(a), that issue was fully litigated before Boyd J. in British Columbia. The appellants gave up their right to appeal Boyd J.’s order. They should not be allowed to, in effect, mount a collateral attack on the British Columbia order on grounds never raised before the Ontario courts.
[12] Finally, it is not in the public interest to resolve those issues on this record. Because of the way in which the case made its way to this court there is not a full evidentiary record relating either to S.J.B.’s particular circumstances or the operation of the Ontario consent to treatment regime.
[13] I take a different view, however, with respect to the procedural and related issues raised by this case. The paramount consideration on this aspect of the case is the concern for judicial resources. The case raises issues of a recurring nature but brief duration. The Ontario judges were presented with circumstances that required immediate attention. Within hours of Paisley J.’s order, S.J.B. was on an airplane back to British Columbia. In circumstances such as these the dispute will always have disappeared before it can be ultimately resolved. See Borowski at p. 361: “In my view, expending judicial resources is warranted in this case given the importance of the issues and the fact that this type of case is evasive of review (New Brunswick (Minister of Health and Community Services) v. G(J.), 1999 653 (SCC), [1999] 3 S.C.R. 46 at para. 45)”.
[14] For this court to take jurisdiction in this case is consistent with the court’s role as the adjudicative branch. The issues presented on this aspect of the case concern the procedure to be adopted by the courts. There is no intrusion into the legislative sphere.
[15] Finally, I am not concerned by the absence of a true adversarial relationship. The court has been provided with a full record, including fresh evidence, from both sides about the events leading up to the orders made by the Ontario judges. It is evident that the parties, including the Director, are still intensely interested in this aspect of the litigation. It is not beyond the realm of possibility that the Director will be faced with a similar situation and it is in the Director’s interest as much as the appellants’ that the correct procedure be adopted.
[16] In my view, the court should resolve the following procedural issues engaged by this case:
(1) Was the ex parte order made by Boyd J. subject to recognition and enforcement under s. 41(1) of the Children’s Law Reform Act?
(2) Did Paisley J. err in refusing to hear the viva voce evidence sought to be adduced by the appellants?
The ex parte order of Boyd J.
[17] Both Ontario judges concluded that the ex parte order made by Boyd J. could be recognized and enforced under s. 41(1) of the Children’s Law Reform Act. Section 41(1) provides as follows:
Upon application by any person in whose favour an order for the custody of or access to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,
(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;
(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;
(c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;
(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or
(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.
[18] Up to April 27, 2005, the orders made by the British Columbia courts in this proceeding were made under s. 29 of the Child, Family and Community Service Act (B.C.). Those orders authorized health care without the consent of S.J.B. or her parents. In my view, they were not custody orders within the meaning of s. 41(1). As the Attorney General of British Columbia put it his memorandum of argument on the appeal in early April 2005 before Boyd J., the s. 29 order merely removes “an impediment to treatment of the child and provision of health care in circumstances contemplated by that section. That is, the treating physician is no longer open to an action and liability for damages for battery for providing health care treatment without consent”.
[19] The Director did not refer us to any authority suggesting that an order made under s. 29 of the Child, Family and Community Service Act was a custody order. Section 29 permits a court to order the parent to do certain things, including delivering the child to the place where the healthcare is provided. The order may also include any other terms that the court considers necessary. The order made by Meyers Prov. Ct. J. prohibited the parents and S.J.B. from obstructing provision of blood to S.J.B. but did not interfere with the parents’ custody or access to the child. Other provisions of the Act deal with care and custody of a child, for example, ss. 32 and 41 to 50.
[20] In my view, the only custody order was the one made by Boyd J. on April 27, 2005. Paragraph 4 of that order reads as follows:
The Director of Child, Family and Community Service for the Province of British Columbia, shall have sole interim custody and guardianship of the Child, S.J.B., born […], 1990;
[21] Also of interest is paragraph 6 of that order:
The Respondents shall have supervised access to the Child provided such access does not interfere with or in any way affect the medical treatment of the Child, S.J.B.;
[22] Paisley J. reasoned that s. 41(1)(b) had no application because the earlier orders made by the British Columbia courts were custody or access orders and the April 27order “was to enforce the custodial aspect of the orders already made”. Even if I am wrong, and the earlier s. 29 orders could be construed as custody orders, because they dealt with an attribute of custody, namely, consent to treatment, s. 41(1) applies only if, inter alia, the appellants were given an opportunity to be heard by the British Columbia court before “the order” was made. In my view “the order” referred to in para. (b) is the custody order for which the Director sought enforcement, namely the April 27 ex parte order. The April 27 order did not simply enforce the earlier orders; it gave the Director sole interim custody of S.J.B., took S.J.B. out of the custody of her parents and in paragraph 6 gave them only supervised access to S.J.B.. The April 27 order represented a profound change in the custody and access arrangements respecting S.J.B..
[23] I did not understand the respondent to dispute the fact that the appellants were not given an opportunity to be heard before the April 27order was made. In any event, I am satisfied that they were not given that opportunity. While Boyd J. undoubtedly had the entire file before her and was intimately familiar with the case, she had only the Director’s version of why S.J.B. and her parents had come to Toronto. As V. Mackinnon J. said in Ndegwa v. Ndegwa (2001), 2001 28132 (ON SC), 20 R.F.L. (5th) 118 (Ont. Sup. Ct. J.) at para. 15 “‘Being heard’ [within the meaning of s. 41(1)(b)] entails knowing the case to be met and having the opportunity to address the factual and legal issues in the case.” S.J.B. and her parents did not have that opportunity.
[24] In my view, on this basis alone, the orders of the Ontario courts should be set aside. It was not argued that the judges had a discretion to recognize the orders even if one of the exceptions in s. 41(1)(b) applied. I should not be taken as deciding that such a discretion does not exist.
[25] The Director argued that notice of the s. 29 application was notice of the commencement of the proceeding for the purpose of s. 41(1)(a). Given my conclusion respecting s. 41(1)(b), I need not decide whether the condition in s. 41(1)(a) was met, i.e., that the appellants were given reasonable notice of “the commencement of the proceeding in which the order was made because they had been given notice of the s. 29 application.”
Should Paisley J. have heard viva voce evidence
[26] Paisley J. ruled that he would deal with what he termed “the jurisdictional issue” before hearing any of the evidence the appellants wished to place before him. This approach would be appropriate in two respects. First, if Mesbur J. had no jurisdiction to make the ex parte order, it could be set aside without need to hear any additional evidence the appellants proposed to call on that issue. As I understand it, the jurisdiction issue was whether any of the exceptions in s. 41(1), such as para. (b), applied. Second, Paisley J. was only required to hear evidence that was relevant to the issues before him.
[27] However, in my view, it was not open to Paisley J. to determine the jurisdiction issue against the appellants without hearing relevant evidence the parties sought to put before him. In doing so, he deprived the appellants of the fair inter partes hearing to which they were entitled. The appellants sought to introduce viva voce evidence that would show the purpose for S.J.B.’s attendance in Toronto and, in particular, that they were not forum shopping, that there was no medical emergency requiring an ex parte hearing before Mesbur J., that alternative treatment without blood transfusion was available in New York and that the Director was aware of the alternative treatment. This evidence was at least relevant to the public policy issue under s. 41(1)(d) and to s. 43, which provides as follows:
Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child if the court is satisfied that the child would, on the balance of probability, suffer serious harm if,
(a) the child remains in the custody of the person legally entitled to custody of the child;
(b) the child is returned to the custody of the person entitled to custody of the child; or
(c) the child is removed from Ontario.
[28] I do not say that either the public policy issue or the s. 43 issues would have succeeded, but the evidence that the appellants proposed to introduce was relevant to them. For example, although as a matter of constitutional law, the courts of one province are required to give full faith and credit to the orders of the courts of other provinces, it would seem to be open to a party to argue that the order of the extra-provincial court is contrary to public policy. See Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077 at 1110.
[29] The respondent argues that the order of Jarvis J. makes it clear that the appellants were only entitled to rely upon affidavit evidence and that Paisley J. considered the affidavits that the appellants placed before him. I have set out the important part of the order of Jarvis J. above but repeat it here for convenience.
I recognize the importance and the dire consequences of orders being made without notice. In my view, the family ought to have the opportunity to call evidence and make representations. To achieve this, it is my order that this motion be adjourned to May 3/05 at 10:00 a.m. to afford the family and the respondents [the opportunity] to present further materials and make more orderly submissions.
[30] The parties rely upon different parts of the order. The appellants note the phrase “opportunity to call evidence”, while the respondent refers to the phrase “present further materials”. In my view, the most that can be said in favour of the respondent’s position is that the reasons are ambiguous. In those circumstances, to avoid any appearance of unfairness, it would have been proper for Paisley J. to hear the oral evidence the appellants wished to adduce, particularly given the tight time constraints under which the appellants were operating. But, more to the point, in my view, he did not refuse to hear the evidence because of the form in which it was presented but because of the view he formed as to jurisdiction. In my view, the order of Jarvis J. is no answer to the appellants’ submission that they were deprived of a fair hearing. Accordingly, on this basis as well, I would set aside the order of Paisley J.
[31] Before concluding, I wish to note one further issue that, it seems to me, arises from this case. Even if the respondent was not entitled to enforce the British Columbia order, it is possible that he could have applied or sought the intervention of the Ontario Children’s Aid Society under Part III of the Child and Family Services Act, R.S.O. 1990, c. C.11 on the basis that S.J.B. was a child in need of protection. I do not say that such an application would succeed or was even feasible or that an Ontario court would exercise jurisdiction in such a case.[^1] We did not hear argument on those issues. We also did not hear argument on the difficult question that would follow concerning the relationship between s. 62 of that Act [allowing the Society to consent to medical treatment of a Society ward] and the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A.
DISPOSITION
[32] Accordingly, I would allow the appeal in part and set aside the orders of Mesbur J. and Paisley J. Neither party sought costs and there will therefore be no order for costs. In any event, given the divided success this would not have been a case for costs.
Signed: “M. Rosenberg J.A.”
“I agree S.T. Goudge J.A.”
“I agree K. Feldman J.A.”
RELEASED: “MR” June 30, 2006
[^1]: See s. 22 of the Children’s Law Reform Act.